Holland & Knight - Know Your Rights by Holland & Knight

Know Your Rights Here is guidance for employees if agents from the U.S. Department of Homeland Security (DHS) and/or U.S. Department of Labor (DOL) visit your home or workplace and ask to speak to you.

WHY IS DHS AND/OR DOL AT MY HOME OR WORKPLACE? Many companies that employ noncitizens of the United States are visited each year by investigators from DHS and DOL to determine whether they are in compliance with immigration and labor laws. As part of this process, government officials may visit a company’s employees at their home or workplace seeking to ask questions regarding that company’s compliance with the law. Such a visit does not mean that the individual employee is under investigation.

WHAT RIGHTS DO EMPLOYEES OF A COMPANY HAVE WHEN APPROACHED BY AGENTS FROM DHS AND/OR DOL? Employees of companies being examined have certain rights under the U.S. Constitution and laws to ensure that they are treated appropriately and fairly while, at the same time, the government can obtain any information it has the legal right to obtain in an investigation.

For Private Areas  Immigration agents can enter a private area ONLY IF they have a judicial warrant. (A judicial warrant must be signed by a judge and say “U.S. District Court” or a State Court at the top).  Without a judicial warrant, DHS or DOL agents need YOUR permission to enter private areas of your business or your home.  If DHS or DOL agents try to enter a private area, you have the right to say: “This is a private area. Do you have a judicial warrant that authorizes you to enter here?”

For Public Areas  Anyone – including DHS or DOL agents – can enter public areas without permission.  Public areas include: a dining area in a restaurant, a parking lot, a lobby or a waiting area.  Being in a public area does NOT give U.S. Immigration and Customs Enforcement (ICE) the authority to stop, question or arrest just anyone.  No one can enter a private area of your house or job without permission or a judicial warrant.

During the Visit  Stay calm. Do not panic or run. Oftentimes visits, or inspections, by law enforcement are routine. Fleeing will only make things worse because DHS or DOL agents can say that people who are running are likely violating immigration laws.  The Constitution and laws of the United States empower you as an employee with the following rights: o

You are empowered by the law to choose whether to speak, or not speak, with the agents. This is your choice, as it is everyone’s.  If you choose to speak with an agent, you absolutely must tell the truth. In addition, if you speak with an agent, it is likely that he or she will document what you say by recording it or writing it down.  The best way for you to protect your rights if you so choose is to stay silent and ask for an attorney. Many companies will provide their employees with an attorney to attend any questioning session with government agents if their employees wish to have an attorney present.  If you do not wish to have an attorney present, remember to answer all questions truthfully. Also, only answer the specific questions you are asked and please tell the agent if you do not understand their question.

In addition, if you so choose, you are empowered by law with the right to accept or decline requests from investigators for the following information:    

any identification documents or immigration papers whether any specific employee other than you is working on that day or not where DHS or DOL agents can look to find any employee they seek to question (even if he or she is at work at the time) the immigration status or country of birth of particular employees of the company

 At the end of the interview and after DHS or DOL leaves, try to the best of your ability to write or record the following: o o o o o o

How many agents were present (inside and outside)? Did the agents identify themselves to you? If so, how? How were the agents dressed? Did the agents make you or your workers believe you could not move or leave? Did the agents mistreat anyone? If yes, how? What did the agents ask you? What were the answers that you gave them?

 If you do choose to speak with the agents, please note that many companies have internal policies that you should not discuss matters concerning business operations unless legal counsel is present. There are several reasons for policies of this nature, including: o

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An employee may not know what company information may be disclosed versus what information is proprietary, privileged or confidential; nor is it fair to expect an employee to make that distinction. Also, a company employee is generally not authorized to speak for the company – only certain company officers or company officials may do so. Thus, it is advisable that legal counsel be present during any and all employee interviews to protect your employer’s rights. Statements made by an employee may unintentionally bind the company. Therefore, by speaking only through authorized personnel, investigators will receive a consistent and accurate message which will be less likely to be misunderstood or misinterpreted. Additionally, the government can take criminal and other enforcement action against a company’s employees, as well as against a company, based on statements made by those employees.