ICE, ICE, Baby

by Kathleen J. Jennings (kjj@wimlaw.com)

With the threat of  U.S. Customs and Immigration Enforcement (ICE) raids in the very near future, we are repeating advice from an older blog post so that companies know what to do if ICE shows up at the door.

What is a company to do if ICE agents show up at a facility?

The first question that you need to ask is this: Do you have a warrant?

If the answer to that question is yes, then the company’s options are limited.

Review the warrant and contact counsel immediately. ICE is a federal law enforcement agency, and a company, like a person, needs to ensure that its 4th amendment (against unreasonable search and seizure) and 5th amendment (against self-incrimination) rights are protected.

Does the warrant seek documents or information? It is absolutely the job of the company’s counsel to respond or possibly even move to quash the warrant.
If there is no warrant, then the company has more options in responding.

Without a warrant, law enforcement cannot enter a company’s private property without the permission of an agent of the company. The company should designate in advance the person or persons who are authorized to interact with members of law enforcement on behalf of the company.

If there is no warrant or court order, the company does not have to provide any documents or information to ICE. The company may voluntarily provide information, such as Motel 6 did in Arizona, when it turned over guest logs to ICE.

If the company has a collective bargaining agreement, does the collective bargaining agreement say anything about the level of cooperation the company can provide to ICE? Some unions are seeking inclusion of provisions in collective bargaining agreements that would limit the employer’s ability to cooperate with ICE. Some model provisions restrict an employer from letting ICE agents into the workplace unless they possess a valid judicial warrant. These model provisions also ban the auditing or sharing of workers’ I-9 employment eligibility verification forms or checking status using the voluntary E-Verify program, except where required by law, from. As enforcement efforts become more aggressive, look for more unions to propose this type of contract language.
[Some unions, such as Unite Here!, which represents many hospitality workers, are also providing training to workers in the handling of encounters with ICE.]

What are the possible future consequences? Will a lack of cooperation result in more federal law enforcement pressure on the company? Or will cooperating with ICE result the loss of a substantial number of workers or unfavorable publicity?

Pro Tip: However a company chooses to respond to a visit from ICE, it should have a written plan of action in place well before anyone from ICE appears at the door. Review that plan with counsel to ensure that the company’s rights are protected.

Kathleen Jennings is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She has also handled criminal matters. She can be contacted at kjj@wimlaw.com.

©2019 Wimberly Lawson
The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

Rethinking the Use of Pre-Employment Drug Tests to Weed Out Applicants

By Kathleen J. Jennings (kjj@wimlaw.com)

Last week, Illinois became the 11th state to pass legislation to legalize recreational marijuana. New York may be the next state to pass similar legislation. In addition, 33 states (including Georgia) and the District of Columbia have passed laws legalizing the use of medical marijuana. With all the legal weed out there, should employers continue to drug test applicants (and employees) for the presence of THC (a marijuana metabolite)?

First and foremost—be aware that these state laws have no impact on federally mandated testing of applicants and employees, most notably, drug testing required by the Department of Transportation (DOT). To that end, the DOT has issued the “Recreational Marijuana” Notice: “We want to make it perfectly clear that the state initiatives will have no bearing on the Department of Transportation’s regulated drug testing program. The Department of Transportation’s Drug and Alcohol Testing Regulation – 49 CFR Part 40 – does not authorize the use of Schedule I drugs, including marijuana, for any reason.” As far as federal law is concerned, marijuana use is illegal.

For those applicants and employees that are not subject to federally mandated drug testing, some employers are discontinuing drug testing for the presence of THC. Some of those employers are doing so in order to avoid violating state laws: 11 states (Arkansas, Arizona, Connecticut, Delaware, Illinois, Maine, Minnesota, Nevada, New York, Pennsylvania and Rhode Island) have statutes that explicitly prohibit employment discrimination against medical marijuana users. New York City passed an ordinance banning employers from conducting preemployment tests for medical marijuana. Nevada has recently passed legislation (awaiting the governor’s signature) that would prohibit an employer from rejecting a job candidate for testing positive for marijuana. We are also seeing court cases where the courts have found in favor of protecting medical marijuana users against discrimination.

Furthermore, some employers have stopped screening applicants for THC because they find that they are losing too many otherwise acceptable job candidates.

One of the biggest challenges for employers is determining if an employee is under the influence of marijuana while working. THC can stay in a person’s system for as long as 3 weeks. Current drug tests cannot accurately pinpoint when an individual actually ingested marijuana. Obviously, employers do not want their employees to be stoned while working, especially if they are operating equipment, driving, or providing health care services. If an employer has a suspicion that an employee is under the influence of marijuana while working, it is important to carefully document the reasons supporting that suspicion, such as odor and employee appearance and behavior, before sending the employee home or taking further action.

This is a very dynamic area of the law, and it is important to stay up to date on the laws of the states where your company does business.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2019 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.