According to the National Milk Producers Federation (NMPF), immigrant labor accounts for 51% of all dairy labor, and dairies that employ immigrant labor produce 79% of the U.S. milk supply.
If the U.S. dairy industry were to lose its foreign-born workforce, NMPF reports retail milk prices would almost double, and it would cost the total U.S. economy more than $32 billion.
At the Dairy Calf and Heifer Association’s Annual Conference and Trade Show in Colorado, Idaho Dairymen’s Association (IDA) CEO Rick Naerebout and Jennifer Uranga of Mountain West Ag Consulting gave a presentation on how to prepare for U.S. Immigration and Customs Enforcement (ICE) visits.
“Approach this is as if you are going to get a visit in the next four years,” Naerebout said of the current immigration landscape. “Hope that it doesn’t, but anticipate that it is, and be prepared.”
Know your rights
Should a visit occur, your primary goal should be to limit the amount of exposure ICE has to the facility and employees, Naerebout said. For instance, ICE cannot access private areas without a judicial warrant, which is a warrant signed by a judge, as opposed to an administrative warrant issued by Homeland Security.
To know what areas of your property might be considered legally public, and thus susceptible to ICE advances, he recommended taking note of where packages are left when delivered. Any area that can be traversed and visited by delivery persons is accessible to anyone, including government agents, without a warrant. If you’re able, put signage up to designate what’s private and what’s not. That way, you can defend your property rights and limit what agents can see and/or access.
Beyond having defined private and public areas of your farm, Naerebout said you should train your employees on what to say if they are approached first. For example: “I’m not authorized to give you entry; let me get the owner.” This takes the pressure off your employees and lets you control the conversation.
He also suggested coaching your workers on how not to panic, as they do not have to answer any questions (this is the Fifth Amendment right as granted by the Constitution).
Other experts have weighed in on balancing rights with cooperating, including lawyers Kelli Meilink and Tiffany Baldwin in the article “ICE at the worksite: What should employers do.”
“While it is prudent for employers to not be seen as uncooperative with law enforcement, they must be mindful that ICE and other law enforcement must still go through a judicial process to access an employee or their information,” they write. Employers should balance respecting their employees’ confidentiality and limiting disruption within the workplace with maintaining a good rapport with ICE.”
Further, during the presentation, Naerebout advised employers to verify the identities of agents on site to confirm they are bona fide law enforcement.
Finally, he said, establish a relationship with an immigration attorney whom you can call for legal advice — and be sure to seek advice proactively. He pointed out that the last thing you want to do is be caught off guard, with ICE at your door, calling an attorney in a panic. Instead, nurture the connection and plan beforehand.
“No matter what, the visit will be uncomfortable,” Naerebout said. “It is not a friendly visit. But we encourage you to push back and make sure you’re preserving your rights. Play the balance. Don’t roll over. Look for limitations within any warrant they might have — what it is and what it authorizes them to do.”
He reiterated: “Do your homework beforehand. Talk to attorneys and talk to each other — U.S. producers are the best network for solutions.”
Prepare for I-9 audits
Uranga said that part of an ICE visit might involve a request to examine I-9s. This would come in the form of a Notice of Inspection (NOI), requiring an employer to produce I-9 forms within three business days.
Meilink and Baldwin’s article addresses this as well, suggesting that “Even if you have recently done an internal audit and know documents are in order, take the full three days and do not provide documents early. As is your right, do not sign anything or answer any questions before speaking with legal counsel.”
Uranga said you can still prepare for I-9 audits prior to receiving an NOI. Perform your own internal audit alongside your trusted attorney to look for proof of who your employees are and that they have the documents that show their eligibility to work in the U.S. If for some reason a worker did not fill out the I-9 by day three of their employment, or if you find an error in their documentation, she urged not to delay in having it fixed. U.S. passports and permanent residence cards prove a right to work and identity in one document.
“You are not required to be a document specialist,” said Uranga. “Visit uscis.gov or consult your attorney to understand what to look for.”
“Establish a designated team for I-9 compliance who ensure timely completion, periodic internal audits, and opportunity for corrections, and regularly train employees on I-9 completion and the importance of compliance,” Uranga said.
For storage, she encouraged employers to keep I-9s separate from personnel files, locked in a cabinet with authorized access only, and to remember that anything stored in plain sight or discussed within earshot of public spaces where ICE might be is fair game for incrimination, legally speaking.
When it comes to E-Verify — an electronic form of employment eligibility verification — both presenters said it depends on your situation and whether you are being required by your state or by other factors to use it. Naerebout advised that if you don’t need to do it, don’t. “You might discover something you don’t want to know. It creates a quandary for you as an employer,” he said.
Wrapping it up
“The first thing I’ll tell you to do every time, for anything, is talk to your attorney. They’ll help you limit your risk,” Naerebout said.
Second, he said to coach your employees with good intention and empathy.
“It’s not rosy, but you need to have the conversation. It’s the elephant in the room. You want people to stay and to feel safe. Have an open-door policy, dispel rumors, reassure them that there are a good amount of organizations across agriculture that are working on this issue. Point them to resources. Ask them if they have a plan in place for their own families outside of the workplace,” Naerebout said.
The presenters said that perhaps the most valuable way you can support your employees away from work is by printing and providing Red Cards — physical, compact legal rights reminders for any situation. Individuals can read them aloud when confronted or simply hand them to an ICE agent and immediately claim and affirm their Constitutional rights (https://www.ilrc.org/red-cards-tarjetas-rojas).
The overall goal, they concluded, is to lessen worry regarding potential visits and hiccups. By staying educated and prepared, you and your employees may avoid extremities.
