Preparing for ICE on the Jobsite - PODCAST TRANSCRIPT

Editor's note: The following is the transcript of a live interview with Trent Cotney of Adams and Reese LLP. You can read the interview below, listen to the podcast or watch the recording.

Intro: Good morning and welcome to Coffee Conversations from the Coffee Shops. My name is Heidi Ellsworth and we are here with a very special Coffee Conversations preparing for ICE on the job site. We already see people in the chat. People are already sharing their thoughts. Thank you so much, Tori. Good morning. We want to make sure that you are all very active in the chat, asking the questions that you have on this very important topic. We'll be monitoring it and answering these because you know what? This is a conversation. My name is Heidi Ellsworth, and a couple housekeeping. This is being recorded and will be available on demand by Monday, if not sooner, but most likely by Monday.

And please, like I said, the chat is open. Please let us know where you're at, what kind of business you have, what part of the country and ask questions throughout. We will be addressing them as we go. I am so privileged today to have our friend and leading expert in the industry, Trent Cotney here to help us navigate these rough times and what is happening. Trent, welcome to Coffee Conversations and thank you so much.

Trent Cotney: Hey, it's great to be here. It's always good spending time with you, Heidi.

Heidi J. Ellsworth: Oh, I love it. I, know when we were at IRE and we were hearing at IRE and through phone calls that contractors across the country are asking questions, they're having situations, they need help. We're like, we need to get Trent and we need to make this happen. So if you could introduce yourself and tell us a little bit about you and your history in both construction law and the industry, that would be great.

Trent Cotney: Sure. So, my name's Trent Cotney. I am a partner at Adams & Reese and construction team leader over here. We've got 20 offices. We're a national firm of 400 lawyers, but what I do day in and day out is represent roofing contractors and professionals in the roofing industry. I serve as general counsel for NRCA, Western States, FRSA Chicago and about 15 other associations. And all I do all day long is talk to roofing contractors. So love the industry, been in it for a while now and really looking forward to today's conversations.

Heidi J. Ellsworth: Let's start. Let's just kind of set some groundwork right up front. Like I said, you and I both have been getting calls and our teams calls about ICE and immigration and what is going on. We heard it all last week at IRE, reason we are getting this so quickly out to everyone with you, but can you share with everyone, first of all, what is ICE and a little bit of the atmosphere right now with immigration?

Trent Cotney: Yeah, absolutely. So ICE stands for US Immigrations and Customs Enforcement, and it's a federal executive agency that technically is under the Department of Homeland Security. It is responsible for enforcing immigration laws, investigating things related to border security and conducting deportation proceedings. The reason why ICE has become such a big issue now is that the Trump administration has put it front and center. And just kind of taking a step back to frame the issue, we've had a huge, huge influx of sub-labor, 1099 labor. And the reason that has really come about is a couple things. Huge demand, lack of skilled labor. You and I have been talking about that for the last decade.

Heidi J. Ellsworth: Yes, we have.

Trent Cotney: Always an issue, but coming out of COVID, there was a lot of opportunity, a lot of demand and throughout today, I want to kind of preface this, immigration is a politically sensitive issue and a lot of the topics that we're talking about are politically sensitive. Nothing that I'm saying has anything to do with politics. And I said this when we were at IRA, I don't see blue or red, I only see green. So any conversations that I'm having today, it's solely about how this affects roofing and construction. Part of what we experienced during the Biden administration was open borders. And what that means is that people, foreign labor or other people that weren't here legally could go back and forth across the border and not face many, if any, ramifications in doing so. And there's obviously negatives to that, right? There's terrorism, there's crime, it's not fair for the people that are here legally.

But one of the benefits is that the roofing industry had unlimited unfettered access to labor. Historically, we have not been able to sustain our labor needs with our domestic workforce, so we depend on foreign labor, just like hospitality and agriculture does. So having those open borders has really fueled the use of sub-labor to the point where 85% plus of residential contractors are using some form of 1099 labor, and it's become sort of dominant within our industry, not just residential, but you're seeing a big influx within commercial as well. So the Trump administration, the primary, if you look at the bullet points of what the agenda was going into office January 20th, it was immigration was front and center. And starting January 20th, there were a series of things that were done to decrease the amount of people that were coming across the border. So enhanced border protection, declare a state of emergency, which is a critical political tactic and by declaring a state of emergency, you can bypass a lot of the normal process of obtaining congressional approval and things like that.

And you can send troops down there, you can reinforce the wall, you can do all these other things. And since a lot of that has been done, the amount of travel across the southern border has decreased significantly. I've seen some say 85%, some say 90%, it's a lot different. But coupled with that, there has been a lot of enforcement by ICE, this US Immigrations and Customs Enforcement. And so far what we have seen is a little bit of a mixed bag. And Heidi, like you, I have the benefit of traveling almost every week. I've talked to contractors all over the United States, and I can tell you this is a real thing. We have reports of ICE raids in Chicago, ICE raids in Florida. I've had ICE raids up in the Northeast and elsewhere. And what I have heard is that they're primarily focusing with the intent to detain and deport criminals, individuals that may have committed crimes here in the US or may have a red notice or something from Interpol because of crimes that were committed elsewhere.

But the issue is if I go into an apartment and I am there to arrest an individual that has a criminal record and there are 20 other people in that apartment, all of which are here illegally, but have no criminal records, they're all going to get rounded up and they're all going to be deported. So we've had a lot of instances of that happen. Some of the reports that I have received just in the last couple of weeks are crews, sub crews, either no showing or sub crews partially showing. So two out of four will show up. We've had reports of ICE raids occurring on job sites. We've had an uptick in I-9 audits. So you'll receive a notice of inspection, an NOI, and we'll get into this in more detail. I'm just laying the predicate to talk a little bit about this is a huge issue, and if you are in a city or a state that has declared itself a sanctuary location, you can anticipate even more action as a result of the Trump administration.

Heidi J. Ellsworth: We are hearing it, too. The first reports we had actually, what really pushed us to get this special coffee conversations came out of Colorado. So even some states that people maybe not traditionally would think would be having this, it doesn't matter anymore, it's everywhere. We just had David Barr here in the comments say, "ICE raids in Missouri this week," and so we're seeing it everywhere. I think this is what's so important, so I'm just going to hop to it, Trent, what should contractors be doing? What should they be doing to protect their company and prepare and help their employees?

Trent Cotney: So there's a lot of different things that can be done, and I've always been a big believer that you should have a standard operating procedure for everything that you do. And this is no different than if OSHA inspects your job site. I've always... I speak on, and I've talked about having an SOP if OSHA shows up, the same thing should hold true with ICE, right? You should understand that ICE does have authority to inspect workplaces for immigration violations, but you need to understand what your rights are, what your employee rights are, make sure that you are walking a line that you're not obstructing investigations or anything of that nature. Big believer in training, making sure that your supervisors understand what to do when ICE arises and ensure that you are engaging in legal compliance with regard to hiring practices. So making sure that you are maintaining that proper documentation, that you're getting I-9s, that you're doing all those types of things that need to be done.

Heidi J. Ellsworth: Now, and forgive my ignorance on this, but is this something with the I-9 documentation that should now be kept on job sites so that it is handy?

Trent Cotney: No.

Heidi J. Ellsworth: No. Good. There we go. I asked a good question.

Trent Cotney: No, that is a fantastic question. And so, just to kind of take a step back, there's a difference between an I-9 audit and an ICE raid. An ICE raid is where ICE comes out with the intent to arrest someone and/or deport someone. So typically, ICE will come out and they will have one of two things. They will have either an administrative warrant or a judicial warrant. An administrative warrant is civil, and what it does is it allows ICE to arrest or deport someone that is on public property, a public property as opposed to private. And we will speak a lot about this today.

A judicial warrant allows ICE to go into private property and arrest someone or deport someone. Okay, an I-9 audit is a little bit different. So ICE can't show up on your job site and say you need to produce all of your I-9s right now, because you have three days to produce them. Typically, what happens and I've had four in the last three weeks receive NOIs, notice of inspection. Okay? So we'll talk a lot about compliance and what to do, but you should keep your I-9s separate. You want to keep them separate from your employee files. You want to have them so you can put your fingertips on them quickly. And compliance and making sure that you're doing everything there is critically important. There are so many different things that you have to really pay attention to in order to make sure that your I-9s are properly filled out. Happy to get into that as well, but I know I'm jumping around a lot.

Heidi J. Ellsworth: No, I think that kind of leads to that question. That's why... And you're right, we're going to get more into that documentation, but when you were saying that, I was just like, "Should you have this?" But what and why does ICE decide to raid, notify, visit? What are some of the triggers or is there any rhyme or reason to it?

Trent Cotney: There's definitely rhyme or reason to it. So this administration is very tactical in its approach, regardless of whether you love it or you hate it, right? There is a lot of tactical effort that has been put into implementation and part of the initial foray that you've seen into immigration enforcement has focused primarily on those with criminal records. And the reason is, is that it is politically more difficult to argue against the deportation of criminals and saw some recent polls, an overwhelming favor of deporting criminals. It's a lot different than what we had with Elian Gonzalez and things of that nature. That's a more difficult story. So typically what happens is there can be random audits or investigations. I don't believe in coincidence, and I don't think there's enough resources to justify coincidence. So I tend to think that the majority of notice of inspections or ICE raids that you receive are a result of tips or complaints. Those can be from anonymous sources, they can be from competitors, they can be from disgruntled employees. It could be from a union. You never know.

It could be based on past violations. So if you have a history of you've been fined before for failure to maintain proper documentation or you have been the subject of an ICE raid, you are probably earmarked where you're going to make... They're going to want to come out and check and see are you still employing undocumented workers? It's important to understand that there aren't just fines involved. There's potential criminal ramifications if you are knowingly employing undocumented workers. So there's always that criminal element there that you have to be very mindful of. And then, another thing to kind of keep in mind is that it could be part of a larger suite. So there tend to be... ICE only has so many people that are there and sometimes they work and coordinate with local law enforcement, but it may be part of a larger sweep. So we've seen some targeting of some of the cartels and that sometimes, they may come in to arrest a cartel member.

That cartel member may be with 20 other people that have nothing to do with that cartel, but because they are there illegally, they are brought into that enforcement action. So I would say, I would be very surprised if anything is random at this point. It is very targeted and there just aren't enough resources right now to have more random widespread thing. Now I'll say part of the omnibus bill that you've seen that's kind of working its way through the House right now, there is a significant amount of resources that are being put and allocated towards ICE and Homeland Security for this purpose. So it is possible that there will be more enforcement, but right now, given the limited number, they're going for the little hanging fruit right now, which is criminals.

Heidi J. Ellsworth: Wow. Again, if you have questions, please let us know in the chat. I would also really like it if you don't mind sharing in the chat if you've heard of ICE raids in your area or have experienced them, if you feel comfortable saying that, but we would love to have some of that feedback in the chat also. So I'm curious, and overall, what legal authority does ICE have, Trent and do they need a warrant? How does that work?

Trent Cotney: Yeah, so ICE has legal authority and it's vested through a variety of different acts. The Department of Homeland Security has provided a certain amount of authority to them. Title VIII has given them authority. There is a variety of different aspects. Even before ICE, there was the US Customs Service that technically was an arm of the Department of Treasury that enforced border security. So they do have legal authority to do what they're doing, but I think this is probably a good time to really expand upon warrants and the public and private space. This is where our listeners need to pay attention. Okay, this is important. So as I kind of mentioned, an ICE administrative warrant is a document that's issued by ICE officers, not a judge. So a judge does not sign an administrative warrant, and it is under the authority of DHS, the Department of Homeland Security.

It's used for civil immigration enforcement, so detaining individuals that are suspected of being here unlawfully. It can be used and implemented in public areas. In order to access a private area, you must have a judicial warrant signed by a judge. So let's talk about why that is important. I'm going to give you a variety of examples. So in order to determine whether or not a place is private or public, it is a fact-intensive analysis. If I'm walking down a sidewalk, that is clearly a public space, okay? No question there. But let's talk a little bit more about a job site. If I'm on a roof, is that a public or a private space? If I'm on a roof, that is a private space, so a judicial warrant is required. Okay? What if I am just in the front of a house? If anyone has open access to that and there's not any kind of signage up there that says restricted access, it's not an install, doesn't say private property, then there's an argument that ICE would have the ability to enter and do what it has to do in that public area.

So one of the things that you want to consider is if you're working on a house or you're working on a commercial project, do you have signage up that says, "Restricted access," do you have signage up that says, "No trespassing, private property," okay, because if you have that, it makes it a lot better for you to argue that a judicial warrant is required. So let's talk a little bit more about that. If I am an ICE agent and I show up, it's important to understand, just like OSHA or just like any other executive agency officers and inspectors tend to push, they will go a lot further than what their authority grants them and it is up to you, the employer, to set those boundaries.

So they will come up and they'll say, "Hey, I am with ICE. Give me your I-9s." The answer to that is, "On the advice of counsel, I don't have to give you I-9s without a notice of inspection, in three days." "Well, are you obstructing what we're doing?" "No, not doing that. I understand the law, I want to comply with the law, but my understanding is that I have three days to provide these I-9s." "Bring your people down from the roof. I want to talk to them." The response that you say there is, "Do you have a judicial warrant? Show it to me." And if they show you what says warrant, you need to see is it signed by a judge or is an administrative warrant signed by the Department of Homeland Security? You can go online and show you what those look like. If it's just an administrative warrant, they do not have the right to enter private property. They cannot do so without a judicial warrant.

You as an employer can deny access without a judicial warrant if it is private property. So again, the designation private property often depends on signage and restricted access. Okay? Another example is your home office, if there's an area, is a lobby public access, probably. But after you go past that lobby, you probably have a sign and if you don't, you probably need a sign that says, "Restricted access," right? Or if you've got a key card or something else in there, that means at that point that ICE would have to have a judicial warrant. So, pay attention to this part. If they bring a judicial warrant, your person out in the field needs to understand, then they need to take a photo of it and they need to read it carefully. If it says, "I am here for John Smith, George so-and-so and this person and I am going to inspect this trailer," that is the extent and limit of their judicial warrant. So you can accompany them, never obstruct them, even if they barge into private property and you've told them they need a warrant, do not interfere with what they're doing.

Object. Take notice of it. Understand, record it, but do not obstruct, because you could face criminal charges based on that. And like I said, the determination of private or public property is a factually intensive analysis. So look at that warrant, see what it says, make sure that they are following the warrant. If they're not following the warrant, you can object. There may be some intimidation or other things like that. Just say, "Look, I'm just asserting my rights. Here's what I'm supposed to do." It's important to note, and this is another note, that if you are in a place like California, for example, you are not allowed by state law to provide access to private property. You can't even voluntarily provide access without requesting a judicial warrant. Now, pretty much everywhere else, I'm trying to think if there's any other states that are... Maybe some other sanctuary cities or states, but you are allowed to have access and you can waive access unintentionally.

So for example, let's say I'm an ICE agent and I roll up to a job site and I say, "I'm with ICE. We've got reason to believe that there are people here that are not here legally. We want to perform an inspection. We want to go through and walk into this house that you're working on." If you allow them in there, it's like the vampire rules. If you invite a vampire in, they can do whatever they want. Same kind of thing holds true. If you consent to them coming in without saying they need a judicial warrant, you've waived that right. So you do not have to talk to ICE without counsel present. That's another right that you've got because there are criminal ramifications. So you have the right to remain silent. Again, don't obstruct, be civil, be respectful, don't do anything stupid. Take notes. Be very cognizant of what's going on, but know your rights and assert them. The signage is an important thing to understand because it is, on commercial job sites, it's a little bit more easier to understand because usually they're fenced off or cordoned off somehow.

Residential, it's a little bit more difficult. If I'm driving up and there's no fence and I see a bunch of guys in the yard, I probably got access to that unless there's some signage or something that says, "Restricted access." In which case at that point, you as an employer can say, "Respectfully, I believe this is private property. We've got signage here where you need a judicial warrant." And then make sure that you reviewed that judicial warrant, taken photos of it and that they are just doing what's in that judicial warrant. Okay? This is an important point. Do not obstruct. That's the key thing is do not obstruct any ICE agent regardless of even if they're doing something that is wrong, object, do not obstruct. Because what I don't want you to do is get in a way and then have you arrested for impeding an investigation, that's not good from a criminal perspective, it may end up on the press and there's a lot of other things that could happen. So monitor, object and know your rights. So that was a lot, Heidi, but there's a lot to unpack there.

Heidi J. Ellsworth: I think that's important, and we're going to share at the end resources where you can go to get this in writing. I know that there's articles out there that you can look at. There's a great article in Professional Roofing that just came out.

Trent Cotney: Yep. I did an article for Professional Roofing where I outlined what to do during an ICE inspection. It's available to public. So if you just search there, you'll be able to find it. And there's a lot of other resources that can help you navigate these things so that you're not blindsided. But the key thing is, your supervisor, your foreman, your whoever's out there, your QC person, man in that job site needs to understand the process. The process is if ICE rolls up, ask for identification, badge number. They need to understand that they should make a call to management or management's counsel, and they should be out on that job site with them, making sure that they're watching everything that needs to be done. Demand that warrant, you demand that warrant. Don't grant access, don't grant access. So that's the key thing is if it's a public space, they have access. If it's a private space, if it's been stopped. If it's an office, if it's a home, can't get in there without a warrant.

Heidi J. Ellsworth: Quick question. We have a lot of contractors who are coming into the summer months. I know that's still three months away, but it's going so fast, who are going to be working on schools. We have a lot of contractors who are working on churches. I mean, government buildings I think are different, because there's different rules there, but where do schools, churches, those types of institutions fall in on private and public?

Trent Cotney: So the analysis and a lot of these are fact-intensive, so the analysis generally is does the public have access? So typically, if you have a construction site, it's flagged off, fenced off, cordoned off and there's usually restricted access signage on there. And if there's not, you need to have it on there. So, go to Home Depot, invest in their signs there. It won't cost a lot. I got one on my fence. I don't have anything to worry about, but I'd rather have it there anyway because it doesn't just apply to ICE, it applies to everything. That is you signaling that this is a private area, restricted access and you should have that anyway for liability purposes because you don't want somebody roaming around and not know that it's a construction site. So regardless of whether you're working in a school, a baseball field, wherever it is, if it's cordoned off, if it's fenced off, that could be a private area for construction purposes.

So that's kind of what you want to keep in mind. Now, if the workers walk outside, that's open access, right? There's no issue there. If they are in a church and they decide to go to the pews and pray, is that public access? If I could get in there, then ICE could get in there, there's an argument there. There's been a lot of uproar over ICE agents coming into churches, and so, that is a more difficult issue. But clearly if you're at the 7-Eleven, if you're at the sidewalk, if you walk out to your truck, all of that is public access. So like I said, it's very fact-intensive, but typically, they're coming in and what I see most employers doing is just not understanding that in order to access certain things, you need a judicial warrant and if you don't assert it, it's waived.

Heidi J. Ellsworth: Wow. Okay. We have a lot of questions. So I want to hit some of these. From Craig, "What is your estimate of the percentage of immigrants in roofing as well as the percentage of undocumented immigrants in roofing?" Do you have any idea? I don't know.

Trent Cotney: Yeah, I mean, look, I'm a lawyer, right? But I know roofing, I understand roofing. I think it's safe to say that whether it's W2 or 1099, that there is a lot of undocumented workers out there, a lot. And undocumented isn't the right phrase. So, there are many workers that can provide the documentation needed to execute an I-9, driver's license, Social Security card, all that kind of stuff. Would they be able to pass E-Verify? I doubt it. Okay. So I think it is a lot, and I think within the sub-crews, it's a majority. So I will say that, and I'm trying to thread the needle a little bit, but I think anybody listening to this knows that we all want a legal workforce to the extent they're W2s. We are complying with I-9 laws and we're doing everything that we need to do there, but there's a large component of our labor force that is not here legally.

Heidi J. Ellsworth: Yeah, and it's interesting. Renee, hello Renee. She said something that I think is important and not just in today's climate, but she said, "There are conversations in social media joking around to close down projects of competitors. This is not a joke to me." And I think 100%, and this isn't something new. This has been, and you said at the very beginning, Trent, there are some people, competitors who will report people to cause problems and that was happening back in the nineties. That's probably been happening forever. So to that, that's bad practice, don't you think?

Trent Cotney: Yeah, I mean, I've always been a big believer in karma. I don't recommend doing that. I don't think it's a good business practice. I always want to focus on what I'm doing instead of what somebody else is doing. I don't recommend that. But that being said, yeah, I'm positive that some of these NOIs that I've gotten for I-9 audits have come from competitors. And that's another thing that you need to understand. If you're a big dog, you got a lot of targets on your back. So you need to understand that this kind of stuff can happen. And my advice to you is make sure you have audited your I-9s and you crossed your T's and dotted your I's, and that your subcontract agreement requires that all your subs comply with immigration regulation.

I've had some contractors that as part of their sub-checklist, they ask for I-9 documentation, even though they're not required to maintain I-9 documentation on 1099s. There's some potential liability issues there, especially if you get an I-9 that's not filled out properly from a sub. But typically the best thing that you can do is sure up your internal procedures and recognize that just like OSHA, yeah, it can happen, but if you're prepared, then you're mitigating your risk.

Heidi J. Ellsworth: Okay, well and you're leading into perfect, too, Liliana, thank you so much. Her question is, "What if we have I-9 form filled out from the subcontractor with all the workers and they bring an illegal person to the job site that we are not aware of and we have ICE on the job site. What's the contractor liability to this situation?"

Trent Cotney: So, that's a big question. Let me see if I can unpack it. As a refresher, you are only required to keep I-9s for W2 workers. Most federal law does not require you to keep the backup documentation. Some state laws like Florida for example, depending on how many employees you have, require you to keep backup documentation. I typically recommend less is more. I keep just the bare minimum of what I'm supposed to keep.

And it's a good idea that you go through at least every year and audit your I-9s and make sure that you're compliant. There are some big box stores that require I-9 verifications on an annual basis. So if you're working for a Walmart or a Target, you may get that request. On your subs keeping I-9s, there's good and bad to that. So the good side of it is is that if you got their I-9s and they're compliant, then you can show anybody that's coming on that job site that you're taking the steps to make sure that you have the legal workforce that's working that job, right?

The downside of it is, like I said, if you're getting I-9s and you don't have I-9s for everybody that's working there or the I-9s aren't filled out correctly, then you have potential exposure. For example, if there's whiteout or if there's incorrect information, you are assuming a duty that you as an employer don't have to do. So typically in a 1099 situation, you're not liable for those things. But where I see ICE coming into play, and we talked about this a lot last year, Heidi, was misclassification. So if you have a subcontractor, a sub-labor crew that only works for you, that doesn't work for anybody else, that wears your gear, that doesn't market or doesn't advertise, they're really your employees, you're just not paying correctly, which means you have payroll tax liability, you have OSHA liability and you have I-9 liability because you haven't been maintaining I-9s on your 1099 crew.

So, there's about 50 different directions you can go with that answer. But what I'm saying is is that the best thing that you can do is are you liable if a sub-sub-sub has somebody there that's illegally? Only If you knowingly allow that to happen, if you have contractual language that pushes everything down on your sub-crews, if you are engaging in activity to make sure that everybody has comp, that's another thing that you are doing what you need to do. If there's some plausible deniability there with regard to how this person got on that job site, and that's a thing, but I'm more concerned about you getting roped in on a misclassification claim if you've got workers out there that only work for you, but you're still paying them 1099. So oftentimes, ICE will take a look at that, they'll look at your sub-relationships and say, "What's going on here?" Or as part of an I-9 audit, they may start looking at that a little bit stronger.

So you need to sure up your subcontract agreement, sure up your subcontractor checklist and determine, you know what it's like, Heidi? It's like if you're going to take photos of a job site for safety purposes, make sure you're checking those photos because if the photo is damning, there's not much I or anybody else can do for you. If your safety person takes a photo of only one hole filled in on a bracket and said that's okay, it's the same as taking I-9s that aren't filled out properly from a sub crew. So typically, less is more when it comes to liability.

Heidi J. Ellsworth: Looking at the bigger picture, because this all could lead to bigger pictures of how you're operating. So yeah, getting all that in place. Tom asked, "Can our lobby be public, but the rest of our property private." I think we answered that on signage, signage, signage.

Trent Cotney: Signage is important, right? It's important. And like I said, you just go to Home Depot, buy one of those signs, put it up. Even if you've got nothing to worry about, you should still have that because it's for liability purposes, for insurance purposes, it's important.

Heidi J. Ellsworth: And then Rich Carol has a really interesting question here. It says, "Can an individual do anything now if they fear deportation or a raid? Can they take asylum, DACA or other legal remedies?"

Trent Cotney: Yeah. So first off, Rich, how are you doing, man? I haven't seen you in a while, but it's good to hear from you. So yes, so let's talk about employee assistance, right? I've been talking about employers a lot. Obviously, I represent employers, but what can you do for your employees? So, training is important. Your employees should understand what their rights are, that they don't have to talk. Don't run, do not run. If you run, they're going to arrest you. They're going to assume you're guilty. Don't run. That's one thing that I've seen here recently happen. ICE will show up and 20 people are running out the back door. They're all arrested immediately. So, watch out for that. They need to understand their rights. You need to give them access to employee immigration counsel, immigration lawyers that can potentially assist them with obtaining visas or working here legally. And a lot of times I've seen, we've helped develop some employer assistance programs where you help pay for some of that work that's going to be done. There is the H-2B process, which is cumbersome and in my opinion, not great.

One of the things that I'm going to advocate for this year and Heidi, I know you'll be there at Roofing Day again, is we got to have a better visa system to allow workers to come in and out, be taxed, be tracked, do everything that needs to be done. But our system doesn't work right now. H-2B is a joke, but yeah, you can absolutely and you should do this. One of the messages that I sent during IRE when I was talking was labor rates are going to go up. And part of the reason is that sub-crews and even W2s that aren't here legally may fear deportation or may not be able to gain easy access across the border where the rest of their family is and they may leave. So what I anticipate is going to happen is you're going to see a labor rate increase of 25% or more because there's not going to be as many workers, the workers that are here, you're going to have to pay a lot more in order to keep happy.

But part of the message that I'm sending is you need to start having open and honest communications with your employees and your sub-crews and show that you care. Say, "Here are some resources for you to use." There's a bunch of different websites out there where you can kind of go and it'll give you, here are some things that you can give to employees. You don't to ever want to participate in anything with employees that looks to break the law. So you don't want to participate in obstruction, you don't want to... You want to be very careful. You don't want to call in a crew and say, "Just letting you guys know in case you're here illegally..." Because then you could face a discrimination charge. So my advice is have a blanket, if you want to assist employees, do blanket training for all employees and say, "This has been an issue. Just letting you know, here are some resources. Here's some things to know. Here are some employee friendly immigration lawyers that you call, and if this is ever an issue, not saying it is, but just giving you advice." And you can also come up with employee assistance programs in the event that it's an issue.

Heidi J. Ellsworth: Yeah. Wow. So much. I hope you're all taking notes, but this is being recorded so you can watch it again and we'll get to the resources at the end, too. You know what, I want to go rule back a quick because there's a lot of questions here, on the private versus public property. And so we had Monica said, "Sounds like they can lure people out of the private property onto the sidewalk, which is public. Is that right?"

Trent Cotney: Yeah, and I'll give you some examples. They will come in and they'll say, "Hey, I'm from ICE. We've got reason to believe that... We've got a warrant." It might just be an administrative warrant. You might not know any different. It says warrant up at the top, "And we need to inspect your property." So you as a superintendent or quality control person, you're already scared to death and you're like, "Okay, come on in." At that point, you've given them access and they can go anywhere and do whatever they want. Or they may say, "Look..." They may come into your lobby and say, "We're ICE," and they come rolling in with FBI or local law enforcement. It is intimidating. And they say, "Look, we need to talk to these people. Bring them out here." If you bring them out here, you waived the right, you waived their right. So you as an employer can say, "Look, I got to have a judicial warrant. They're not in a public access." And then they'll accuse you.

They will say... Not everybody, but sometimes they will say, "So you're refusing to cooperate with us? You realize we're a federal agency, we've got a warrant." The answer is, "No. Definitely want to cooperate, but our lawyer has advised us of X, let me get him or her on the line. Happy to have you talk to them. But my understanding is that you are asking for access to what is a private space, and if you are, you need a judicial warrant and I have not seen a judicial warrant. If you have a judicial warrant, show it to me. I will gladly give you access, but want to cooperate, want to help, but I've also got liability concerns on my end and our lawyer..." Blame the lawyer. Nobody likes lawyers blame lawyer, but it is very intimidating. So more intimidating than OSHA or anything else. So you need to prepare, you need to understand and have a game plan in the event that this happens because if you make some missteps, you may expose yourself to greater liability than you would've had had you enforced your rights.

Heidi J. Ellsworth: And there's a couple questions here about, can the homeowner or the building owners grant access?

Trent Cotney: Potentially, maybe. So I'll give you a lawyer answer, maybe. So, it depends. If it is a construction site and they are on the roof, then technically that is restricted access that you control while construction is being formed. It is their property. So you as an employer can rescind, can say, "Look, that is a private area. They are on a roof. You'll need a judicial warrant. We control that access." If the owner comes out and says, "Screw you, let them up there. I'm giving them access." More than likely, ICE will then move forward. In which case, you should object and say, "Because this is an active construction site, I control this area and I am refusing to provide access without a judicial warrant. So please note my objection." And again, never obstruct, don't stand on the way, don't touch them, don't push them, don't do anything because you will be arrested and you'll be on the news and that's not what you want. So, know your rights, search your rights, object and then that may be something after the fact that can be asserted to throw out evidence.

Heidi J. Ellsworth: We have some great questions here. To that, is it legal, from Sabrina, "Is it legal to the ICE inspection and interaction?"

Trent Cotney: Yeah, you're welcome to video it. You may have some issues there depending on privacy laws and what's going on, depending on where it's being... And I'm just thinking of any of the nuances here. If it's on your property, then I don't see any issue. And you may have cameras up already, right? I mean, my house, it's like a damn fortress. I got cameras on every angle. So it's the same kind of thing where if you probably already have cameras that are filming. I can't walk outside without being filmed from 20 cameras, so I don't have any issue with that. Obviously, take photos of the warrant and any documentation that is brought. Here's another... Oh, great question. So I need to mention this, as part of a judicial warrant or if you grant access or whatever, ICE may come in and take certain files, they may take certain documents.

You are entitled to an inventory of the documents that were taken, and you need to ask for that and obtain that. You need to know exactly what was taken. Take photos, ask for a copy, right? Because you don't know what is taken. If they're looking at you from a criminal standpoint and they're taking employee files or subcontract agreements or whatever it is, you need to make sure that you understand exactly what was taken because your lawyer is going to ask for that. One other thing I need to mention to you, immigration lawyers, there's a big difference in immigration lawyers. There is, immigration lawyers, what we would do, which is employer representation for I-9 audits or employer representation for ICE raids. That is different than employee lawyer representation. And there are typically two types of immigration lawyers for employees. There are those immigration lawyers that assist with the paperwork, the visas, the green card, whatever is needed to get people over here leaving.

And then there's a separate section of lawyers that do the criminal deportation defense. Rarely, do they commingle for whatever reason. I'm not saying that's always the case, sometimes you're full service. Everything, but typically you're either in court going to deportation stuff or you're not. There are some immigration firms that we worked with that are soup to nuts, that may have somebody down the hall that does one thing and does another thing. But the reason I'm saying this is that if you are providing resources to your employees, you want to make sure that you have vetted them and that they perform the type of stuff that your employees may need. Typically, that may be different than what an employer would need. Rarely is the employee's lawyer the same as an employer, although sometimes that can happen. So segue there, but I thought that was important to note.

Heidi J. Ellsworth: And across the board, I mean, probably you're going to... A good lawyer will tell you, "You need this person," or your lawyer will work with you to get the specialist.

Trent Cotney: Yeah. And immigration lawyers are like criminal defense lawyers. You want to make sure you are getting a good one. There are a lot of bad ones. You want to make sure that you've got someone that is really going to assist you, understands the nuances. Typically, what I've heard from a deportation defense standpoint, especially in this environment is that it is an uphill battle. So part of it is just understanding what are your expectations and coming to terms with that. But a good lawyer will map all that out for the employee or whoever it is and say, "Look, this is what I'm seeing. This is your best case scenario. Choose your poison." That's typically what you see.

Heidi J. Ellsworth: Quick question, is there an address associated with the warrant and what if the warrants address does not match the location of the job site?

Trent Cotney: Yes. Yeah. So yes, the warrant is very specific, so it is just like a criminal warrant. So if there's a criminal warrant that's issued against me, then I would want to take a look at it and I would want to see what does the warrant allow them to inspect? It should have a specific address on there that should match where they are at the time that they're seeking to enforce it. If it doesn't match exactly, you can object to the warrant and say, "This is not the correct address. This is not a proper judicial warrant. I am denying access as an employer until you have a proper judicial warrant." They can still say, "Screw you," and go on there and do whatever they got to do. In which case, you've asserted your objection and that's it. But the other thing that you need to understand is that typically, the warrant has a scope within it and they're limited to that scope. So just like when OSHA shows up on a job site, the first thing that you want to ask them is, "Why are you here?"

And if they say, "I'm here because I saw four guys on a roof without fall protection," that is the limit of their investigation. They can't investigate the scaffolding on the back of the building. They're there because four people are on roof without fall protection. Same holds true with an ICE warrant. You want go through and you want to look at it and let's say you got a detached shed or something in the back, does the warrant cover that? If it doesn't, then you want to assert an objection and say, "It doesn't cover this area. You've only listed the residence here. It doesn't cover the mother-in-law suite in the back," or, "It doesn't cover this adjacent property," or, "It doesn't cover this unit," or, "It doesn't cover my detached warehouse." Whatever it is, you need to read the warrant carefully, take a photo of it, make sure that it's there. Part of this is navigating the anxiety. And I've always been a big believer that if you take the time to really game plan, understand what these things are about, you're going to make smart decisions.

Part of it is slowing things down mentally so that you have the opportunity to read the warrant, understand what it says and you're welcome to accompany them and say, "Okay, you're accessing private property, reliability purposes. I'm coming with you not interfering, not doing anything, but I need to see what you're doing. I need to understand what's going on." And if they decide to go into an area that's not part of that warrant or they decide to... They're generally there with arrest warrants for certain people. So you have to be able to assert those objections. You need to do it vocally. You need to make sure that there are witnesses to that, and then you need to follow up. Typically, what I do is I follow up with an email and say, "Investigation occurred today. I objected to these following things at the time. There were witnesses to that," whatever. And the goal is assert your rights. You must assert your rights, otherwise you will waive them.

Heidi J. Ellsworth: Wow. Okay. A couple other questions. We're getting to the top of the hour. This always goes so fast, but wanted to know if you'll be able to access this call later? Yes, it will be available by Monday, possibly sooner on demand, under Coffee Conversations under the RLW navigation. And you'll be able to have this both transcript, podcast and video, so across the board. Lorna, good morning Lorna and she asked, "Trent, can you share a document with the right process step-by-step if ICE gets to the job site, something to share with supervisor informant?"

Trent Cotney: Yeah, typically there are... The article I did for NRCA is pretty decent, but typically what I like to do, just like I got a little wallet card that I give for OSHA. For superintendents, this is what you do and it's important to have something like that because if you don't have that, your people out on the field are going to freak out and they're not going to remember what they're supposed to do. So it's also important what you say on that. You want to be very careful about what you say and how you say it. You don't want to suggest that they circumvent the investigation or they obscure anything or they look to harass ICE officials or anything like that. But it is a good idea to have an SOP in a wallet card or something like that so that your QC people have the capability to follow a script rather than having to remember things while there's a bunch of people with guns surrounding them. I would freak out. I mean, anybody would freak out in that situation.

Heidi J. Ellsworth: I would. I know. And in the chat, I just put the link to the article that Trent wrote for Professional Roofing. That's the National Roofing Contract Association official publication, and the link is in the chat. So if you want to get that to also read and to have the notes, very, very informational for everyone.

Trent Cotney: And just as a CYA, obviously this is for educational purposes, we're talking about legal issues and I'm giving advice, but if you've got specific issues, please let me know because I'm giving stuff from a general perspective.

Heidi J. Ellsworth: Right. So one of the questions, I think you just covered it, "Is there training available for managers to understand the process if I shows up on the job site?" So Trent, you kind of answered that.

Trent Cotney: Yeah. Absolutely. Yeah, yeah. There's training out there. There are resources if you just do a general Google search, there are resources available that have videos and things of that nature. Some are pushing the envelope, so you want to find one that is a good neutral resource on how to deal with it. You don't want to lean too far to potential problems. A lot of different resources out there. Some associations provide some assistance with that. We do some training, so there are tons of different resources out there that you can use to help kind of instruct your superintendents [inaudible 00:55:12].

Heidi J. Ellsworth: Okay, so great questions everyone. I'm going to try to get these in. Jalen and Mary both wanted to know if there is a plate resources where they can get the OSHA cards. Is there a resource that we can find a wallet card to hand out to employees about ICE? And then they also wanted to know if there was one for OSHA. I know Trent, we had it on Roofer's Coffee Shop, that OSHA card for people to hold, but I think we may have to... Or you may already still have those on your website. I'm not sure.

Trent Cotney: Yeah, I don't know. We obviously have them and create them and all that kind of stuff. Is there a wallet? There may be on one of the ICE defense related websites, a wallet card that's downloadable, but I don't know off the top of my head. Yes, we have created those. We do have those, but I don't know, I can't think of a link right now or anything where you could just download them.

Heidi J. Ellsworth: So what we'll try to do on that, I know we have had those in the past for OSHA and so we'll probably be able to get those on the directories and then as we'll keep watching for the ones on ICE. And so stay tuned as we continue to put these out with articles and podcasts and in the directories, you should be able to find them, just probably not right now. And then what if you have subs on a roof and they see ICE show up and it becomes a stakeout situation where the subs can't come off the roof and the ICE team camps out in the street. What would you do? Wow.

Trent Cotney: So again, it depends on how much... Clearly the roof is private, but if the project dispense off and you've got restricted access and the whole project is restricted, right? So could they camp there out in public? I mean, definitely, yeah, I mean, they could and then you end up in that kind of situation. But rarely do I see any government employee want to stand outside all day, especially when they've got other things that they're doing. So if you've asserted the request for a judicial warrant, typically... They may stake it out. If they're after certain people, they may wait until they leave, go down the street and nab them. So I don't know if there's anything that you can do to prevent that, nor would I suggest that you do anything to prevent that, but making sure that you're... And I wouldn't assist any of the sub crews in evading, so don't look to hide or do anything like that because you could be found liable for obstruction of justice or another crime related to that kind of activity.

Heidi J. Ellsworth: Please go to the Adams & Reese directory on Roofer's Coffee Shop, also on Metal Coffee Shop and Cody's Coffee Shop and that's where you can get in touch with Trent directly and his team, Adams & Reese is one of the largest construction law firms in the country, has amazing resources, so definitely reach out there. Also, Trent is general counsel for NRCA, for Western States, for Chicago, works with Florida. So if you are involved with the associations where Trent and his team are involved, National Women Roofing, that is also another opportunity for you to reach out.

Finally, Trent is also and his team are available through the R Club and through our consulting on Roofer's Coffee Shop, so you can go in there to try to get some consulting time and also visit with them. So a lot of different ways to get involved to find out more information and to do this. As I said, this is going to be available. It is being recorded and will be available within the next 24 to 48 hours, or Monday. And then also, we did have Spencer say Iamerica.org has some Know Your Rights cards that are printable, so there's a good resource in the chat, Iamerica.org. I want to say a special thank you to Trent. Thank you, Trent, so much. You are amazing and we so appreciate you taking care of us in the roofing industry.

Trent Cotney: Yeah, absolutely. And any you guys have questions, feel free to reach out. You can just email me direct or go through R Club or whatever. I'm happy to answer any questions that you got. Typically, I can just answer the stuff off the top of my head, so feel free to reach out.

Outro: Perfect. And this Coffee Conversations was made possible advice supporters like Central States Manufacturing, wanted to thank them and thank all of our supporters and everyone who continues to help us get this information out and help to continue roofing respect across the board. We appreciate you all. Thank you so much. You have some information there, and we will be seeing you again on March 13th for our next Coffee Conversations. Have a great day.