By Clint Thompson
Southeast specialty crop producers must be prepared for a potential raid or audit of their workforce amid the current crackdown by the Trump Administration in deporting those who are in the country illegally.
Georgia and Florida are two of the largest users of the H-2A program, which allows U.S. employers who meet specific regulatory requirements to bring foreign nationals to the U.S. to fill temporary agricultural jobs. The program is essential to fruit and vegetable growers in both states. However, agricultural operations in the Southeast are susceptible to the current U.S. Immigration and Customs Enforcement (ICE) raids being experienced across the United States.
In partnership with Fisher & Phillips LLP, the Georgia Fruit and Vegetable Growers Association hosted a webinar in February to help outline what farming operations should remember if ICE shows up with a judicial warrant.
Inspection Reasons
ICE may visit a worksite to accomplish one of three objectives: 1) start an I-9 audit, 2) execute a workplace raid or 3) detain a specific person. For the second and third objectives, ICE must have a judicial warrant.
While ICE’s presence may cause a high level of anxiousness in the workplace, it is important that employers and employees be respectful and confirm the presence of a warrant first.
“If they come in and are trying to confirm some basic employer details, I lean toward being helpful. But once they start asking any questions that would not be public knowledge, I would want to see a warrant,” said Cynthia Yarbrough, partner with Fisher & Phillips. “I want to know why they’re there.”
Worksite raids must be accompanied by a judicial warrant signed by a judge. It must provide a specific scope of search and seizure. Examine the warrant’s contents, review any paperwork and understand what it says. Contact your attorney and share a copy of the warrant with them.
Know Your Rights
It is important to remember the rights guaranteed by the U.S. Constitution, specifically pertaining to the fourth and fifth amendments. The fourth amendment protects people from unreasonable searches and seizures by the government. Do not provide information, such as birth country, as it could lead to discriminatory suspicion. The fifth amendment protects people from self-incrimination. Those being investigated can remain silent.
“They don’t have to answer questions about their immigration status, where they were born or how they entered the United States. They can exercise that right to remain silent,” Yarbrough said. “If an ICE agent tries to determine the employee’s immigration status by asking them to stand in groups, according to status, they don’t have to move.”
Employers cannot prohibit or require employees from speaking with ICE agents. It is the individual’s choice whether they want to speak with the agents.
“It is very imperative that companies not do any activity that supports a harboring charge, such as hiding an employee, aiding their escape, providing false or misleading information or saying someone isn’t there that is,” Yarbrough added.
Public vs. Private
While a farming operation may not be able to prevent ICE from stepping foot on their property, it can restrict the agency’s access, unless otherwise noted in a warrant. Workplace signage is key to designate public access from employee access.
“You want to restrict unauthorized access in non-public areas, unless you’re legally required to do so,” Yarbrough said. “If you have a field and only your employees can walk in that field, then I would make sure it is signed: ‘No trespassing. Private property.’ It’s much more complicated in a field type of setting because you don’t have walls, doors, locks and things like that.”
ICE agents are permitted to enter any public area of your workplace but must have a valid search warrant or consent to enter a non-public area.
Points to Remember
Yarbrough shared some additional advice:
- Churches and school zones are no longer designated as safe zones from ICE activity. They are now locations that ICE can target during enforcement activity.
- Preparation is key. Assign a staff member as the primary point of contact for encounters with ICE, Department of Homeland Security and U.S. Customs and Border Protection. Make sure all employees are aware of who this person is and their contact information.
- Provide clear instructions on workplace rights and responsibilities in case of a raid.
- Once the raid has been completed, ICE will provide a list of employees arrested to the employer. Based on the information obtained by ICE officials, they will determine who lacks the right to work. The company should work with immigration counsel to determine if any of those arrested and released can return to work.
- Consult with an immigration attorney.