Immigration Enforcement on Worksites Newly Challenges Employers

The Trump administration has made clear its intent to increase Immigration and Customs Enforcement efforts in order to carry out mass deportations. The agency intends to employ a range of tactics, including those often referred to as worksite enforcement. This approach includes targeted efforts to detain individuals and broader plans to assess whether all employees onsite are properly documented.

Individuals who own, operate, or are located on worksites—particularly those that contain assembly lines or otherwise rely on low or unskilled labor—are likely to feel an outsized impact from this initiative.

To support this massive undertaking, a recently issued directive authorized agents from other law enforcement agencies, including the US Marshals, Drug Enforcement Administration, Bureau of Alcohol, Tobacco, Firearms and Explosives, and the Federal Bureau of Prisons Companies, to assist ICE agents.

Companies must fully understand their rights and obligations when ICE agents, or those from other state and local agencies arrive. One aspect of that understanding—the extent to which agents can make entry with an arrest warrant—threatens to create confusion and conflict between the law enforcement agents and those individuals they interact with.

The challenges are compounded by the fact that the individuals often tasked with making the decision to allow or refuse entry—frontline employees that may include security guards, receptionists, or office personnel—will often be under substantial pressure to make critical judgments without extensive, or perhaps any, legal training.

ICE and its parent agency, the Department of Homeland Security, fill out form documents to detain and remove individuals unlawfully present in the US. These administrative forms include an ICE Warrant for Removal/Deportation (ICE Form I-205) and a DHS Warrant for Arrest of Alien (Form I-200). Neither of these forms requires the signature of a judge or rests on an independent assessment of probable cause.

This is in contrast to a judicial warrant, which a judge signs upon a showing of probable cause that an individual has committed a crime (arrest warrant) or that certain property relating to probable criminal activity exists at a particular location (search warrant).

A company preparing for increased ICE worksite enforcement faces a range of challenges. The threshold questions its employees will confront—whether or not to permit the agents to make entry based on an arrest warrant—often stands as a measure of the company’s perceived willingness to assist or desire to obstruct law enforcement. Recognizing that the decision will often need to be made quickly, with limited information and by those lacking legal training, companies may be tempted to streamline the analysis: Agents possessing judicial warrants will be allowed to make entry; those with administrative forms won’t.

While the temptation to simplify the issue is great, adopting that approach blurs a critical distinction between two different types of judicial warrants. Search warrants and arrest warrants are similar in that both are signed by a judge, but critically different in the authority they convey to make entry into nonpublic areas. In Payton v. New York, the US Supreme Court held that an arrest warrant authorized law enforcement to enter the home in which the subject lived when there was reason to believe they were there at the time the warrant was executed.

Soon after, though, the court decided Steagald v. United States, which limited Payton to the subject’s residence and held that an arrest warrant doesn’t allow police to enter the house of a third party absent exigent circumstances, even if the officer believes the subject might be there. Several years later, in Pembaur v. City of Cincinnati, the court expanded Steagald‘s protections to businesses.

Upon superficial review, the progression of logic of these cases appears counterintuitive. Why would an individual have a greater level of protection from arrest at their job than at their home? The reason is explained in the court’s rulings: When law enforcement seeks to make entry on a third party’s location, whether a residence or a business, it’s the occupants of those places whose rights are violated.

When worksite enforcement efforts increase and are carried out by agents unaccustomed to arresting individuals, an obvious risk emerges: Those agents may well be aware of the rationale underlying Payton, but not its progeny. As a result, they may assume that if they have authority to enter a subject’s home (where that individual has a recognized privacy interest), they certainly have authority to arrest them at work (where they don’t). And those agents are unlikely to enjoy being corrected about their misunderstanding of the law by individuals who appear to possess limited or no legal acumen.

To combat this risk, companies should consider the following strategy:

• Determine, as a matter of policy, whether to refuse law enforcement agents lacking a judicial warrant entry into nonpublic areas.
• If so, train frontline employees to recognize the difference between administrative forms and judicial warrants, both search and arrest.
• Determine, as a matter of policy, whether to refuse law enforcement agents possessing arrest warrants entry into nonpublic areas.
• If so, train frontline employees and provide them a written explanation they can give to law enforcement, complete with citation to cases, to avoid unnecessary conflicts.

Increased worksite enforcement presents a range of challenges. Companies that best understand fully the nature and scope of those issues will be most fully prepared to address them.

Republished with permission. The article "Immigration Enforcement on Worksites Newly Challenges Employers" was originally published by Bloomberg Law on February 12, 2025.