General Contractors & Subcontractors in California – What you need to know [e294]

Full Podcast Transcript

NASIR: Welcome to the podcast!My name is Nasir Pasha.

MATT: And I’m Matt Staub.Well, usually two attorneys here with Pasha Law, practicing in California, Texas, New York, and Illinois, but we have a special surprise guest for this episode.

NASIR: Surprise!Yeah, we have our third attorney at Pasha Law here, Karen McConville, based out of the Bay Area, Northern California, and she is our business corporate attorney with a nice little twist of a legal background of immigration and criminal law which is perfect for today’s episode.Karen, welcome to our podcast!KAREN: Thank you, Nasir! Thank you, Matt!

NASIR: This is where, of course, we cover business in the news and add our legal twist.Today, we are talking about – I was going to say ICE audits, but it’s a little more deeper than that. I would say an ICE raid to your local business or your business.This is something that is kind of heating up, especially in the Bay Area, but pretty much across the country with the new administration.

MATT: Right, and we’ll get into a couple of the specific stories that have really caught our eye here. But, like you were saying, it’s really with this new administration – the Trump administration.I’m sure people have seen a lot more of these instances in the news and it’s obviously adversely affecting businesses and I want to be sympathetic to the fact that, you know, we’re not just thinking about businesses necessarily.It obviously affects individuals’ lives, but just understanding that the bulk of today’s discussion will be focused on, from the employer’s perspective, how you handle these sorts of issues when ICE comes knocking.

NASIR: You’re right. It is kind of a delicate subject. But the reality is that a lot of small businesses, a lot of large businesses depend upon a workforce that may be undocumented, and the impact on the economy, the liability of these employers is an issue that I think many may not be aware in the sense that small businesses may not realize the liability they may incur if they are hiring undocumented workers. They also may not be aware what to do in the event that ICE comes a-knocking.So, Karen, tell us, I mean, this is something that’s going on in particular in the Bay Area, right?KAREN: Yes, this is something that’s happened quite recently. You may have seen articles, seen the article where I had sadly sat in businesses in Northern California and most of those were in San Francisco, some of them were in Sacramento.But, you know, I had an employer call and say, “You know, ICE is two blocks behind from my worksite. What should I do?” which is the reason why we’re talking about it today – because our employers need to be advised on what they can do, what they can’t do, and what they should do.

NASIR: A lot of people would say, “Okay, it’s the Bay Area. They’re notoriously known as a sanctuary – San Francisco in particular – a sanctuary city.” California, I think maybe even considered somewhat of a sanctuary state. I’m not sure if they’ve self-labeled that or otherwise. But it’s not just limited to those areas.7-Elevens across the nation, including here in Texas, have been also targeted for these raids.It shows you it’s not just the mom and pops. These 7-Elevens also have to deal with this issue as well.KAREN: Right.You know, there were arrests that resulted from those 7-Eleven raids. So, there’s two ways they’re going in about it. It’s through the employer and, also, through the use of the tanners if they find anybody who’s there illegal. That’s kind of one of the avenues that brings us into the basis for these raids.The raids in San Francisco, at least, were based on the government’s request from employers for I9 audits and that’s stuff that we might want to talk about.

NASIR: Yeah, let’s start there. Tell us about, first of all, what an I9 and what’s an I9 audit? Should employers be having to fill out these forms? Or should they just skip them?KAREN: Basically, whenever an employer takes on an employee, they have to have them fill out an I9 form. It’s for all new employees. They have to keep it for three years after hiring or one year after the worker’s last day at work – whichever comes later.If ICE comes in through an employer or doesn’t audit the form I9 audit, the employer has to produce these forms, and they only get three days to do it, and that’s what happened here in San Francisco. They come in. They say, you know, “There’s your employees. Where’s their I9 audits? We’re going to have a look at them,” and that’s where the liability comes attached for the employer.

MATT: And this is something that, well, I’m sure a lot of the people listening to this have probably filled out before and just might not have been aware. I’m talking just from, you know, maybe from the employee perspective.But, as an employer, I mean, oftentimes, the person that’s running this – the CEO or President – might not be the one who’s necessarily aware of the requirement for this and they delegate it to maybe even someone completely outside of the organization and it goes through that way. It’s almost an “out of sight, out of mind” thing for a lot of these businesses.I know that’s the case for a lot of the ones that we work with, but that’s something obviously that needs to be kept in mind for these employers because, like Karen was saying, I mean, there is the requirement to do it for new employees – not only for completing the form but for retention as well. Employers can face some harsh consequences if an I9 audit does occur and they’re not able to comply with the requests.KAREN: And the I9 audit is just one way that they might come in. You know, they might just – as they’ve done here in California – conduct a raid without any warning, just as an investigation into an employer to see if they do have workers there who are not legally authorized to work in the United States. That’s another way you might not get the heads up. You might just end up with ICE on your jobsite.

NASIR: I think, in the past – because I’ve heard this anecdotally from colleagues or clients – maybe this happened in the past where ICE would actually kind of give you an early warning informally. “Hey, you know, we’re going to raid your place in a couple of days.”But the aspect without warning – and that’s a key point – imagine your business getting raided by any police presence whatsoever and, depending upon the industry you’re in, the impact that may have on your reputation, on the disruption of the workplace. Whether or not you have any undocumented workers at your facility or not, it doesn’t really matter at that point. Understanding the sensitivities here is something that everyone needs to be aware of, for sure.

MATT: Yeah, and I was going to say, you know, what Nasir was just saying, I mean, with warning or without, I think, for a lot of employers, this really hits their nerves and they get really anxious. Obviously, with no notice, it’s a completely different story, but even when they maybe have sort of warning or some sort of notice, I would think a lot of employers are probably still going to get nervous about this sort of thing happening and just wanting to make sure that they don’t screw anything up – not only for themselves, but for their employees as well.

NASIR: Absolutely.KAREN: Yes, and it doesn’t help that they only get three days to produce these forms because that’s not a lot of time. If it’s a big company like, you know, the raids on the 7-Elevens in Texas and the raids in California.

NASIR: Yeah, no doubt.And so, okay, we talked about I9 audits. Of course, the ICE raids. Sometimes, they’re looking just for one specific person and they may come on your worksite for those particular reasons as well. But I think it’s important to understand – and this is where having some basic knowledge and background of the law really comes in handy because you may not be able to have the opportunity or have an attorney retained right away to be able to ask these questions if they basically start knocking on your door – one of the big questions always when they come to your workplace is, if they have a warrant, what kind of warrant it is.This is where Karen’s perfect for this. She has her background in criminal law which these aspects become very relevant as well.Karen, do you mind kind of explaining the differences between judicial and admin warrant and whether they need a warrant at all to come to the workplace for this kind of purpose?KAREN: Right. Well, they don’t need a warrant. They can come by your workplace. But the distinction really is whether they can enter into private areas of your workplace. It’s just like if a robber is fleeing from the bank.Can the cops go in without a warrant? Yeah, of course. Can immigration turn up and ask people who’s in the public parking lot or in the lobby of a building, you know, questions? Of course, they can. But they can’t enter into private areas without what’s called a judicial warrant and that’s a very different thing.A judicial warrant will look very different to an employer that ICE arrive with. It’s signed by a judge. It will either say on it, “This is a warrant from the US District Court” or it will say it’s from the state court which, in this case, would be the Superior Court of California.Unless they have that, they can’t come into the private areas of your business. if they try to enter, you can ask them to have a look at their warrant, then you’ll be able to see if the warrant’s signed by a judge or if it’s just a detainer or administrative warrant issued by ICE. That makes a big difference. They have no authority to go beyond that.If you ask them for it and they show you a judicial warrant, then, you know, you need to comply with that as an employer and just to avoid any legal problems for the employer on their side.

MATT: It sounds like what might be a smart decision for employers in this situation would be to mark as much as they can as private to kind of do a precautionary way to prevent information from being passed on that shouldn’t be passed along.

NASIR: We should sell stickers that just say “PRIVATE” and they could just stick it everywhere they can. But it’s a good point. Where do you draw the line between public and private? I think you know where I’m going with this and you can kind of give us some examples, but this was always an issue – in criminal law as well.Sometimes, it’s obvious, but there may be times that it may not be. But there’s a lot of law and established practices, especially in workplaces, what is typically considered private versus public.So, just keep in mind that some specific facts may apply to your case.Karen, do you have some examples to kind of give us – whether it’s a restaurant or even a job site in the construction industry?KAREN: Well, I think, with the construction industry, you know, there’s a lot more areas that are public than there is private. If you’re in a homeowner’s house or you’re doing a job for a homeowner, their residence is private and the only place that ICE could be publicly is at the front door on the doorstep and not further than that.But, when you get in the commercial job sites, there’s a lot more areas that are public. You know, the lobby of the building as you come into it; the elevator as you go up; you know, the join-in hallways; the lunchbreak room – those sorts of places are public, and they can enter those.Obviously, if it’s a private office with a closed door, that’s a different story. That’s a private area. You can easily mark those areas as private, so that makes that a lot easier. But that’s just some examples of the difference.You can see which areas should be considered public and private. It’s a lot of common sense on the part of the employer as well as to what areas they can reasonably mark private and it’ll withstand ICE coming in.

NASIR: Absolutely.And so, I do want to talk a little bit about exactly, when we say you don’t need to help ICE if they have an administrative warrant versus a judicial warrant and with judicial warrants, when you have to comply, I think it’s important that we don’t want to create a situation where, if an ICE officer is forcing their way in or what-have-you, you have to be very careful. You don’t want to physically put yourself in danger.You should understand the balance between following the instructions of an officer that has authority to give those instructions versus protecting your establishment and protecting your workers within your rights.Do you have any kind of guidance in finding that line?KAREN: Yes.I mean, employers can protect their employees to a certain extent. I mean, the employers can tell them their rights are to stay silent and ask for an attorney whenever ICE come in. An employer can deny ICE access to certain areas, protecting their workers.But, if there is a judicial warrant, they do have to comply with it, and a lot of times, ICE will turn up with officers from the local police department which adds a lot of authority and can scare both employers and employees.The one thing employers should let their employees know is to not go running whenever ICE does turn up. That can be detrimental.

NASIR: Yeah, I can kind of imagine that scene of a bunch of workers leaving the establishment.KAREN: Yeah, as soon as they somebody with an ICE badge, there’ll be the tendency to run, but that will actually end up being worse for them.

NASIR: Yeah, I think that’s a good reminder.So, that’s some guidance as to when they come knocking, but I think it’s probably a good idea to have some preparation before this even occurs – I mean, to have some level of training and, obviously, this podcast will give you some broad outlines. But even meeting with your general council to give you specific guidance for your situation may be helpful as well.What are some things as far as employers should be doing in order to prepare for something like this?KAREN: One of the things is to have, obviously, the I9 forms in place within your employees as they come in. They can also tell their employees that they don’t have authority to give ICE entrance to the workplace. They can simply have them say, “Talk to my employer. I do not have authority to let you enter.”Again, as I said, tell them they don’t have to answer questions. They don’t need to sign anything. If it’s an I9 audit, that’s on the employer. They do that.As I was saying, what happens if they do run? The risk that runs from that is, say, ICE comes, and they don’t have a warrant. Well, if your employee takes for the door when they do come, well, then they might have a basis to arrest them without a warrant, and that comes from the criminal area of the law that would come into play here.There’s some exceptions to warrant requirements and one of those would be the hot pursuit exception, and that’s pretty much, you know, if they run, the police have a reason to think that something is afoot, and they can then arrest them without a warrant. They could chase them. They can go into private areas where they couldn’t before. That’s something they should be aware of.Then, there’s also the “stop and frisk” which is a case from a long time ago – 1968, actually. This one stems from where if the reasonable mind believes that something is afoot or that offense is going to be committed, then they can stop that person and examine them and ask them questions where they couldn’t before without a warrant. It doesn’t need to arise to the level of probable cause.If it looked like something is not right, then they can stop them and question them. So, employers should try and avoid that for their employees by informing them. Don’t run.

MATT: It sounds like the worst thing that could happen is an employee makes a break for it and runs and then immediately turns around and runs right back where all the other employees are. That’s probably worst-case scenario because then it’s putting everyone at risk. I thought I’d just make a joke.Nasir, this reminded me of – I can’t remember what state it was in. Was it in Utah perhaps? Do you remember the nurse that got arrested for not following, well, according to the police, not following the police orders?This kind of reminds me of that in the sense that, from the employer’s perspective, the employee training or education is pretty key with this. I mean, this is probably going to be the scariest thing an employee would encounter – if ICE comes to the door and there’s just an employee that’s kind of the first point of contact.But, you know, the training to stay calm and to basically say the things that Karen was just talking about, that’s going to go a long way for these employers.

NASIR: Yeah, that’s a good example.Matt’s referring to the nurse in Utah where – I think it was in the emergency department – not even a suspect, a person that was involved in an accident was unconscious and they wanted to take a blood draw or some kind of DNA sample. The nurse said, “Well, the law says…”KAREN: Right. I know the one you’re talking about. It was a DUI and the officer wanted the records and he didn’t have a warrant for it. He didn’t have probable cause at this stage. The guy was in an accident. He was unconscious, and she stood her ground to him, and rightfully so.She did get arrested for obstruction of justice, but that charge was dropped.

NASIR: Very good example.You know, I’m just thinking the uptick in the number of raids, just the fact that we’re talking about it, even if it may be exaggerated just from the media and so forth. I don’t know if we have the statistics because I tried finding whether we can actually see an objective way to see the kind of increase.The impact of this is pretty clear. It does put employers on notice that, look, if you’re going to be engaging in the practice of hiring undocumented workers and not fulfilling these I9s, you are running a greater risk than before. Politics aside, I do think that the objective – if the objective is for employers to be hesitant in hiring undocumented workers – it’s probably pretty effective.KAREN: Right, and I think one of the ways employers should take from these recent raids is, well, go back and look at the records. Do they have I9 forms for all their employees? If they don’t, they need to get them settled and they need to have a practice going forward where it’s immediate that they get these forms to new employees and they be filled out because the risk of an audit seems greater under the current administration and they have to be prepared for that.

NASIR: Yes, those I9s should be a part of the onboarding process, you know. Just like any other package, when you go through a hiring, you have the offer letter or employment agreement, you have that acknowledgement of the employment manual and maybe a confidentiality agreement and including in there, you have the I9.If all those things are not familiar to you because you don’t do it at your business, you may just want to just double-check everything and maybe give us a call because those are pretty standard at most establishments.If you have any number of employees, it should be standard in your business as well.Well, I think we covered it, guys, right? I mean, that’s a pretty need overview of what to do in pretty much a relatively scary situation if you’re not familiar.

MATT: Exactly.I think I mentioned this earlier but it’s definitely going to be one of the more nerve racking things an employer can encounter. So, you’ve got to take this stuff seriously – regardless of where you’re located as a business.

NASIR: Unless you’re not in the United States.

MATT: Yeah, sorry. In the US, I should have specified.

NASIR: Well, very good.Karen, thank you for joining us! We’re looking forward to you joining us again on the podcast. But this subject was just too relevant to you to not include you in the conversation. So, thank you for doing this!KAREN: No problem!My takeaway is don’t run. Don’t give the cops a chance to run after you.

NASIR: You can hide, but don’t run.KAREN: Hide, but don’t run. Hide in the private marked areas, but don’t run for the exists.

NASIR: Got it.

MATT: Honestly good advice for any sort of encounter with law enforcement. It’s something for everyone here.KAREN: Yeah.

NASIR: Okay. Well, very good.Thanks for joining us, everyone!

MATT: Yeah, keep it sound and keep it smart!