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DENVER — Every employer should have a law enforcement response plan, experts said Friday at the American Bar Association’s annual labor and employment law conference.
That’s generally a good practice, said John Mazzeo, a former assistant adviser at the U.S. Department of Homeland Security, because there’s always the possibility that state or local law enforcement could visit a workplace, looking to arrest an employee for various reasons. But proactive response plans may be especially crucial under the Trump administration it relies on workplace strikes to achieve the goals of immigration policy, the speakers noted.
To that end, Mazzeo and his co-panelists offered attendees six tips for preparing a response plan.
1. Identify and form the first point of contact
An employer should identify the person most likely to be the first point of contact for law enforcement — the person sitting at the front desk, perhaps — and train them on what to say, how to say it and who to call, said Mazzeo, now senior director, associate general counsel at Vertical Screen, Inc.
They should also be trained to “treat ICE like a vampire,” recommended Jonathan Grode, US practice director and managing partner at the law firm Green and Spiegel. In other words, “don’t invite them in,” he said. “If you do that, they have all their rights and powers. If you restrict where they can go, you can mute their power a little bit.”
2. Prepare an intermediary
The person receiving the call from the front desk will likely be someone on site and should be trained on a communication plan, speakers said.
This could be a plant manager, for example, who is trained to diffuse the situation while receiving legal advice over the phone.
3. Draw a map and use it
Employers and their legal counsel should create a formal document that marks which parts of their site are public and which are private, Mazzeo said. If a building is surrounded by a fence and cannot be entered without buzzing, the employer may try to take the position that everything is private.
In other buildings, the area beyond the reception area, which can only be accessed using an employee badge, for example, may be private. In businesses like restaurants, the lines between public and private spaces are sometimes blurred and can create problems that business owners will need to work through with counsel, the panelists said.
Employees must be well-trained in these designations to be effective, however, Mazzeo noted; if janitorial staff sometimes open a door in good weather, the employer may not be able to argue that the indoor area is private.
4. Make sure HR has a response plan
An employer’s human resources department should have its own response plan for ICE questions, Mazzeo recommended.
Those in the department should know who will speak with ICE and how they will handle requests from agents. The C-suite may even want to do a tabletop exercise.
5. Carry out an internal audit
Employers should proactively audit themselves, Mazzeo said. I-9 forms are a wealth of information — “a law enforcement treasure chest,” so make sure your house is in order, he said.
Employers may want to check that forms have been completed correctly and identification documents appear authentic, all with legal advice to ensure the audit is privileged.
6. Consider using cameras
Employers may want to think about the role of video recordings, both of employees and the employer’s security system.
It’s “a whole new world” now that everyone has the ability to record video almost at any time, Mazzeo said. And while the video can serve as a record of what happened and whether ICE’s actions align with a warrant, employees also need to be careful because the agency is aggressively pursuing obstruction charges, he said. People should be careful not to block doors, for example.
An employer’s security cameras may be more useful because they are likely always on, often located on doors and time-stamped, Mazzeo said. That could be useful if, for example, ICE entered a space that’s outside the scope of its warrant, he said. The White House is influencing the behavior of agents on the ground, he said, “but all of these things will be tested in court sooner or later.”
