By Craig Webb, President, Webb Analytics
Be legal. Be polite. But don’t be a pushover.
Those three recommendations figure high on attorney Trent Cotney’s list of how contractors should respond to a perceived increase in visits to jobsites by Immigration and Customs Enforcement (ICE) agents.
ICE’s stepped-up activities to find and deport undocumented immigrants are focused first on locating criminals, the Trump Administration has said. But roundups targeting undesirable illegals also can lead to arrests of law-abiding immigrants. And there are multiple reports that the mere rumor of ICE agents being in an area can prompt workers—even legal citizens—to abandon jobsites or not show up.
The National Association of Home Builders estimates that more than a quarter of all workers on construction sites are immigrants. John Burns Research & Consulting believes 10% of all construction workers are undocumented immigrants, including 38% of of all drywall installers, 32% of roofers, and 29% of painters.
That hefty percentage in roofing prompted Cotney--an attorney with Adams & Reese in Tampa, FL, who specializes in representing roofers and others contractors--to be invited to a Roofers Coffee Shop webinar on Feb. 28. His first advice was to make sure that your employees are in the U.S. legally and that you are keeping I-9 forms on them. (I-9 is a form from the federal Department of Homeland Security used to verify employment eligibility.) Employing undocumented immigrants has criminal ramifications, he stressed.
Second, develop a standard operating procedure for what to do if ICE does come calling. “ICE does have authority to investigate, but you and your employees also have rights,” he said. The SOP, he said, should be devoted to “making sure you’re walking the line and not obstructing the investigation.”
One key thing to check when ICE agents visit the job site is whether the agents are coming based on an administrative or a judicial warrant. An administrative warrant (issued by ICE) lets ICE on public property only, while a judicial warrant (signed by a judge) lets ICE go onto private property and arrest someone.
Read the warrant closely, Cotney said. The warrant’s address needs to be correct, along with other data. If it’s not, you can object. What does the warrant cover? If it lists a residence but not an adjacent property, you can object if they go there.
Given the differences between administrative and judicial warrants, designating what’s public and private in an area can be crucial.
“If I’m on a roof, that is a private space,” Cotney said. “If I’m in front of a house, if anyone has open access and there’s no signage saying it’s restricted, there’s an argument that ICE could enter and do what it has to do. So … if you’re working on a house, have signage up that says ‘restricted access’ or ‘private property.’ That makes it more likely a judicial warrant is required.”.
You don’t have to honor every ICE request automatically. “They’ll come in and say, ‘I’m from ICE. We need to inspect.’ If you say ‘come on in,’ that gives them access. Or they may say ‘I’m with ICE’ and they have local law enforcement with them and say ‘We need to talk to these people. Bring them out.’ If they don’t have access, you can refuse.”
The agents might complain that you’re not cooperating, Cotney continued. Point out to them they they’re asking for access to a private space. “You’re within your rights to say ‘Show me your judicial warrant’,” he said.
Officers going to a job site also might demand to see your I-9 documents. These should be kept in an office, and you have three days to produce them. And by the way: An office is private property even if the building lobby leading to it is public, he said, so only a judicial warrant gives them the right to enter.
Throughout all this, “Do not obstruct,” Cotney stressed. “You CAN object. Look at that warrant, make sure they are following the warrant. … Be civil. Be respectful. Take notes. Know your rights. Even if they’re doing something wrong, don’t obstruct.”
Keep in mind, too, that you can’t do anything to shield the workers if they voluntarily walk to a public space, such as a sidewalk in order to go to their cars or a food truck. “You should tell employers what their rights are,” he said. “[Tell them:] Do not run—If you do, they’ll arrest you. You need to give them access to employee immigration counsel who can help them get visas and such. … You need to have open and honest conversations with employees to show you care.”
A homeowner can grant ICE agents access to their property, but when that home also is a construction site you can as the contractor assert that you control access to the area and thus require a judicial warrant.
As part of a judicial warrant, ICE might take certain files. You are entitled to ask for an inventory and get an inventory of what was taken, Cotney said.. Ask for copies. If they’re looking at you and taking employee files, you need to understand what was taken.
What if you have a stakeout, with roofers on the roof and ICE outside waiting? Could ICE camp at the jobsite indefinitely? Yes, Cotney replied, “but rarely do I see a government employee standing out all day.”
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