Sometimes the best advice you can get as a restaurateur comes from your own peers. Read on for a take on immigration and employment practices from Guest Blogger and NMRA Member Jerry Harrell from Double Eagle in Mesilla, New Mexico:
In the past, say, 180 days, you may have been approached by employees asking about publicity regarding immigration enforcement. If you haven’t yet, you probably will. What the heck do you say?
I’m not an attorney and you should not rely on my advice for anything, except the proper way to make a martini. That you can take to the bank, baby! But, there are some general rules you should know.
As an employer, you don’t want an employee to tell you they are not authorized to work and then continue to employ them. You could face penalties for ‘harboring’ undocumented workers and they are serious dollars and even jail time involved. While the Department of Homeland Security has recently issued new instructions to agents, those have more to do with what happens after someone is detained rather than laying out plans for new, different actions to track down the estimated 11 million undocumented persons. A discussion about a friend of an employee who works at a restaurant similar to yours is just fine. We all want to help and protect our employees but be cautious.
Unless a business is publicly, blatantly ignoring the rules, the likelihood of workplace raids in New Mexico restaurants is about the same as it was 181 days ago. The chances of an I-9 audit, however, have increased. If the agents have a question about one employee, be assured they will check them all.
Make sure you are using the latest I-9 form. You don’t have to re-do the old ones, just be sure you are currently using the most recent form. Keep the I-9’s in a separate file, not in the employee files. Agents can see the I-9 forms but, if you allow them to see everything in an employee file without a warrant, problems can mount.
Speaking of warrants, you need to know what agents can legally ask to see and what would require a warrant. Ask your attorney to clarify this for you. Still, being cooperative and friendly is always good advice.
Include a written immigration compliance statement in your employee handbook and make a plan for what to do in case there is a workplace raid. Agents might take several key employees away immediately causing the business to suffer. Make sure your managers-on-duty know who to call and what to do in case ICE does show and the owner or manager is not there. Like the health inspector you can delay but not prevent an inspection by ICE.
If you use the E-Verify system, you must do it for every employee you hire consistently or you could be charged with discrimination for targeting certain workers. Consistent practices are a good defense so make sure you are doing the correct thing.