Knock, Knock! Who’s There?

March 2008
Enforcement Advisor, Volume I, Issue 2

Given the rising number of laws and rules designed to address the “employer-driven illegal alien” problem in the United States, immigration compliance is, or ought to be, a top concern for U.S. employers. Now more than ever, employers need to have office policies in place to respond to a potential knock on the door by enforcement agents.

First, educate your staff on how to respond to a law enforcement agent. Do not make any assumptions that the secretary, supervisor or HR person understands the nuances of an “official” request and the ramifications that may ensue. Think back to your teenage days when you were first learning to drive and the incidences of vehicular stops by the police were more frequent. Remember when the officer would walk to the side of the car and, in a professional and friendly tone, innocently ask, “Do you know why I stopped you?” The whole purpose of this question is to elicit a response that would support the reason for the stop. The driver may admit that they were speeding, weaving, or knew that a taillight was defective. The admission makes the job easier for the officer who may reflect that admission on the ticket or field report. It is better for the driver to let the officer state his reasons for the stop and then follow up with an appropriate explanation.

A similar analysis applies to any enforcement encounter at your place of business. The office policy should clearly define what information the receptionist should gather from the agent, which person has the authority to represent the company’s interests, and what information (if any) should be communicated or volunteered to the agent.

The mere flashing of a “badge” by a plain-clothes agent is not proper procedure. In today’s environment, with the myriad of false identities readily available, including “Police” badges, a quick snap of the badge case is not acceptable. Procedure requires that the agent display an official credential with a photograph that clearly defines the agency and some verbiage as to the agent’s statutory authority; i.e., the agent is authorized to carry firearms, make arrests, serve arrest and search warrants, and gather information. A badge alone carries no authority absent the credential part of the identification and should never be accepted alone.

The receptionist should ask for appropriate identification, compare the photograph to the presenter, ask for a business card, inquire about the purpose of the visit, and direct further inquiries to the appropriate company representative as defined in the office policy. The agent should be escorted to an area away from the general public, allowing inquiries to be conducted in a controlled environment. Be aware that there are exceptions to the Fourth Amendment search warrant requirement: If the officer is free to roam the premises, he or she could seize clearly visible contraband and record observations of architectural layout, doors, furtive activity, and other factors to support investigative initiatives.

Agents may request “cooperation” in an investigation and understandably will be reluctant to fully disclose the reason for their visit. However, general information is always appropriate, such as the service of a summons, administrative subpoena, grand jury subpoena, inspection notice, arrest warrant (administrative or criminal), search warrant and a host of other actions. The company agent who has authority to answer questions or receive service should be clearly defined in the policy. That individual needs to be educated as to what information can be released as a matter of routine and what other requests must be referred “up the chain” or to legal counsel.

In any event, contact with law enforcement must be appropriately documented. If corporate records are released, the internal files must reflect the action taken. The policy should also reflect that any information discussed is on a need-to-know basis and is not for general release. This protects the company from potential accusations of obstruction of justice, harboring, or other allegations that company representatives used privileged information to derail an official investigation.

In the immigration enforcement context, keep in mind that the federal government is entering into Memorandums of Understanding with numerous local and state enforcement agencies to train and equip them to enforce certain aspects of immigration law. In fact, the 2008 fiscal year budget for Immigration and Customs Enforcement (ICE) includes funding of $25 million for this effort. This is an increase of $10 million over the 2007 fiscal year budget. To date, approximately 600 officers from various departments have been trained and are credited with identifying 40,000 immigration violators over the past two years. Many if not most of these violators were employed in the United States.

Once information or records are released to a law enforcement entity, you do not really know how it will be reviewed for trends and patterns, and whether it is related to an isolated incident or will enhance a larger investigation. The best practice is to clearly define what exactly is being requested, who can release the information, and how is that information being controlled. The request may trigger a need to conduct an internal audit of similar records to disclose any inconsistencies.

Caution: never destroy corporate records during an investigation. If changes or corrections are made, clearly date and initial the changes and state the reason the action was taken.