An Employer’s Playbook For ICE Audits And Workplace Raids & By David Jones and Shanon Randhawa Stevenson

Don’t Overlook Labor Law Protections

Even in non-union workplaces, immigration enforcement may trigger protected activity – and mishandling employee walkouts or protests could create additional legal risk.

• Labor Law May Protect Workers: If employees don’t come to work because they fear a raid might occur, know that certain forms of collective action, including work stoppages, may be protected by the National Labor Relations Act (NLRA) – regardless of whether your workers are unionized. The NLRA generally comes into play when employees initiate action among coworkers over work-related issuesor bring complaints about the workplace to management. These same protections have generally been extended to undocumented workers.
• Know The Difference: Employees who choose not to report for duty may be deemed to be collectively refusing to work in protest of the raids, falling under the NLRA’s protection despite your legitimate interest in maintaining normal productivity levels. Conversely, those who confine their protests to broad-based government action unrelated to workplace concerns are generally not afforded such protection. 
• Educate Your Supervisors: Train managers to engage with employees in a neutral, supportive manner and avoid threatening discipline for legally protected concerted activity. Consider offering options for employees to discuss their concerns and encourage transparent communication to minimize potential work disruptions. Although you can instruct such employees that they will not be paid for time they spend off the job, make sure your managers know not to threaten or discipline anyone for engaging in lawful protests if they decide to walk out.
• Rely On Your CBA: Check any relevant collective bargaining agreements (CBAs) for provisions related to mandatory notice requirements when immigration issues arise, and to determine the full scope of information you must provide to your employees.

Conclusion

If you have any questions about these developments or how they may affect your business, please contact your Fisher Phillips attorney, the author of this Insight, or any member of our Immigration Practice Group. Our Employers’ Rapid Response Team (877-483-7781 or DHSRaid@fisherphillips.com) is on call to provide immediate legal counsel when a raid occurs, assist with documentation and compliance review, and provide post-raid support and strategy assistance.

Visit our New Administration Resource Center for Employers to review all our thought leadership and practical resources, and make sure you are subscribed to Fisher Phillips’ Insight System to get the most up-to-date information.

About the authors:

David Jones is the managing partner of the firm’s Memphis office and co-chair of the firm’s Immigration Practice Group. He practices exclusively in the area of immigration and related employment and compliance matters.

He represents clients in complex matters relating to both immigration benefits and enforcement and in proceedings before the Department of Homeland Security, the Department of Labor, the Department of Justice and the Department of State, as well as in matters related to citizenship status discrimination and export control compliance under the Export Administration Regulations (EAR) and International Traffic In Arms Regulations (ITAR).

Shanon Randhawa Stevenson is a partner in Fisher Phillips’ Atlanta office, Chair of the firm’s Diversity, Equity & Inclusion Committee, Co-Chair of the Immigration Practice Group, and a member of the firm’s COVID-19 Taskforce. Her practice focuses on immigration law in the information technology, financial services, healthcare, education, and manufacturing industries.

Shanon focuses on the underlying business issues that prompt organizations to obtain legal counsel, knowing that the compliance and regulatory aspects of maintaining a successful immigration program can distract employers from pursuing their core competencies and business objectives. Shanon partners with clients to alleviate that distraction and reduce their risk profiles so they can focus on the business of innovation and growth.

This article originally appeared on HospitalityLawyer.com.