This guidance was prepared by Lowenstein Sandler LLP (Lowenstein Sandler), New York Lawyers for the Public Interest (NYLPI), Lawyers Alliance for New York, and the Nonprofit Resiliency Network to help nonprofit employers protect their staff, clients, and mission as they navigate the current immigration enforcement environment.
This document is designed for nonprofit leaders who may not be lawyers. It focuses on practical decision-making, risk management, and governance considerations that arise when organizations encounter immigration enforcement activity.
Because the authors are based in New York and New Jersey, the discussion includes examples and references to laws and policies in those states. It builds on prior guidance published by Lowenstein Sandler (the Lowenstein Advisory) and the Nonprofit Resiliency Network (the Nonprofit Resiliency Network Guidance), addressing how nonprofits may respond to immigration enforcement at their facilities—including when an organization may deny access to nonpublic areas and how staff should respond to requests for entry, warrants, subpoenas, and court orders.
This document takes a broader view than earlier guidance, focusing on employment law and operational and governance issues that may arise when nonprofit leaders, staff, volunteers, and clients encounter immigration agents, whether on-site or off-site. For ease of reference, this guidance sometimes refers to “ICE” (U.S. Immigration and Customs Enforcement) or “immigration agents,” but those references should be understood more broadly to include other federal agencies or officers engaged in immigration enforcement activities, including U.S. Customs and Border Protection, the Drug Enforcement Administration, the Federal Bureau of Investigation, and other federal personnel acting in coordination with immigration enforcement.
This guidance was informed by questions that Lowenstein Sandler, NYLPI, and Lawyers Alliance for New York have received from nonprofit organizations and is designed to help nonprofit leaders anticipate, prepare for, and respond to situations that may arise in practice.
This guidance provides general information only. It is not legal advice and does not substitute for consulting a lawyer about your nonprofit’s specific facts and circumstances. If you have questions about this guide or seek pro bono legal representation, you may contact NYLPI through its intake form https://bit.ly/ ClearinghouseIntake or Lawyers Alliance for New York at https:// lawyersalliance.org/resource-calls. If you seek individualized legal advice, you may also email Lowenstein Sandler at nonprofithelp@ lowenstein.com. Lowenstein Sandler cannot guarantee representation, but someone will respond to your inquiry.
EMPLOYEE RIGHTS, SAFETY, AND EMPLOYER RESPONSIBILITIES
Nonprofit employers face overlapping responsibilities during immigration enforcement activity, including workplace safety, nondiscrimination, wage and hour compliance, data privacy, and fiduciary governance. These obligations apply regardless of the immigration status of any individual employee or client.
1. What responsibilities do nonprofit employers have to ensure employee safety during immigration enforcement activity?
General Duty to Provide a Safe Workplace
Employers have a general duty under workplace safety laws to provide a reasonably safe workplace. This obligation does not change in the context of immigration enforcement.
In practice, this means employers should take reasonable, proactive steps to reduce foreseeable risks—particularly for programs that involve public facing or unpredictable environments.
Key actions include:
- Conducting risk assessments for programs with higher exposure to law enforcement encounters, such as street outreach and accompaniment to ICE check-ins.
- Training staff on de-escalation and noninterference.
- Providing clear instructions that staff must not physically intervene in enforcement activity.
- Establishing a clear chain of command during enforcement encounters.
- Requiring prompt internal reporting and documentation of incidents
- Safety planning should be documented. Written protocols help demonstrate that the organization acted reasonably if an incident later leads to a claim.
Off-Site and Community-Based Work
Risk is higher for programs conducted outside the organization’s physical premises, including:
- ICE check-in accompaniment
- Street outreach
- Home visits
- Food or medicine delivery
- Court support
- Transportation of clients
Employers should consider the following steps:
- Define scope of authorized activities with specificity.
- Train staff on the distinction between lawful observation and support and conduct that could be perceived as interference or obstruction.
- Establish “stop work” authority, allowing staff to disengage in work activities if safety deteriorates.
- Ensure insurance coverage reflects actual activities (including off site work and transportation).
- Do not direct or encourage staff to engage in conduct intended to evade or obstruct law enforcement. Such conduct can create legal exposure for both the employee and the organization.
2. What legal protections may apply to employees who encounter immigration enforcement while performing job duties?
Constitutional Rights
As explained more fully in the Lowenstein Advisory and the Nonprofit Resiliency Network Guidance, employees retain constitutional rights, regardless of immigration status. Their core rights include:
- The right to remain silent (Fifth Amendment).
- The right to decline consent to a search of one’s person, home/ private workplace, or belongings absent a valid judicial search warrant (Fourth Amendment). (Note, however, that an employer may consent to a workplace search.)
- The right not to be arrested or detained without legal justification (Fourth and Fifth Amendments). (Note, however, that a judicial warrant is not required for an arrest, whereas a judicial warrant is required for a home/private workplace search.)
- The right to ask if they are free to leave (Fourth Amendment).
The practical implications of exercising these rights may vary depending on the individual’s immigration status and circumstances. For example, U.S. citizens face different strategic considerations from noncitizens in exercising the right to remain silent, as some noncitizens have legal obligations to carry or present documentation when asked. Moreover, while the employees’ constitutional rights are legally protected, they may not always be honored in practice. In some circumstances, asserting rights may prolong encounters with immigration enforcement officers or result in adverse consequences such as retaliation, detention, or other harms. Organizations and their employees should evaluate these risks based on their particular circumstances and risk tolerance.
Employers may provide employees with general “Know Your Rights” education and resources regarding immigration enforcement. Providing factual information about employees’ legal rights and directing employees to reputable legal resources is different from encouraging unlawful conduct. Employers should take care, however, to provide general information rather than individualized legal advice, and should encourage employees to consult qualified immigration counsel regarding their specific circumstances.
Employers should not instruct employees to:
- Flee from law enforcement or immigration authorities.
- Hide or harbor individuals from law enforcement or immigration authorities.
- Provide false information or false documents.
- Physically interfere with or obstruct an immigration enforcement action.
Encouraging or engaging in such conduct may create significant legal risk and potential civil or criminal liability for both the employee and the organization.
Nondiscrimination Obligations
Immigration enforcement concerns do not alter core employment law obligations. Employers must not:
- Treat employees differently based on perceived immigration status
- Reverify work authorization selectively or without a lawful triggering event.
- Apply policies inconsistently in ways that create a hostile work environment.
Overreaction—such as heightened scrutiny of certain employees—can itself create liability under nondiscrimination laws.
3. If an employee is injured during ICE activity, what are our obligations?
Workers’ Compensation
If an employee is injured while performing job duties, workers’ compensation typically provides the exclusive remedy against the employer. This generally shields the organization from tort liability, even if the injury results from third-party conduct (including law enforcement), provided:
- The employee was acting within the scope of employment.
- The employer did not engage in intentional or reckless misconduct
The “intentional or reckless misconduct” exception warrants close attention. Courts generally apply a high bar: the employer must have had actual knowledge that injury was substantially certain to occur or must have acted with conscious disregard of a known, serious risk. Employers who are assigning employees to a location where immigration enforcement activity is highly likely and/or there is a known, volatile environment that could lead to injury should consult with counsel about how to mitigate risks of liability.
Assigning Work in High-Risk Areas
If an organization directs employees to work in environments where enforcement activity is likely (e.g., in the vicinity of protests or high-profile enforcement operations), additional precautions may be warranted.
Employers may wish to consider taking the following steps:
- Conduct a risk assessment and engage in safety planning for activities that may involve interactions with immigration enforcement.
- Make participation in higher-risk assignments voluntary where operationally feasible.
- Avoid retaliation against employees who decline assignments for safety reasons.
- Provide appropriate training, resources, and personal protective equipment where warranted by the circumstances (for example, if large public demonstrations are anticipated).
- Ask employees to sign training acknowledgments or similar documentation confirming that they received information regarding the nature of the assignment, applicable safety protocols, and available organizational resources.
Potential Claims Against Federal Officers or the Federal Government
Employees injured during immigration-enforcement encounters may have potential claims against the federal officers or agencies involved, separate from any workers’ compensation benefits. The availability of such claims is highly fact-specific and subject to significant procedural and immunity defenses.
The Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671–2680 (FTCA), permits certain claims against the United States for negligent or wrongful acts of federal employees acting within the scope of their employment. The FTCA contains important exceptions and ordinarily requires the claimant to present an administrative claim to the applicable federal agency before filing suit. See 28 U.S.C. § 2675(a).
In limited circumstances, an individual may also seek damages directly from a federal officer for certain constitutional violations under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).
New York has also enacted the New York State Bivens Act, N.Y. Civil Rights Law art. 8-A, § 85. The statute authorizes an action against a person acting under color of federal, state, territorial, or District of Columbia law who deprives another person of rights secured by the U.S. Constitution.
Available relief may include compensatory, punitive, nominal, injunctive, and declaratory relief, as well as reasonable attorneys’ fees for a prevailing plaintiff. The statute applies retroactively to certain violations occurring on or after January 1, 2025, although damages for violations occurring before its effective date are subject to limitations. Because the statute is new, significant questions concerning its application—including potential federal immunity, preemption, removal, and Supremacy Clause issues—remain likely to be litigated.
Employers ordinarily will not be parties to these claims, but employees or their counsel may seek the organization’s recordings, incident reports, witness information, or other documentation. Organizations should preserve potentially relevant materials, protect applicable privileges and client confidentiality, and consult counsel before responding to requests for records.
4. Do different considerations apply to volunteers, interns, and contractors?
Yes. These groups may not be covered by the same legal protections as employees. Volunteers often are not covered by workers’ compensation. Interns may or may not be employees covered by workers’ compensation depending on their compensation and the internship program structure. Independent contractors raise separate liability and insurance issues.
Organizations should:
- Clearly define worker roles and classification.
- Consider providing role-specific training that aligns with actual risk exposures.
- Consider requiring workers to sign training acknowledgments.
- Confirm insurance coverage extends to all categories of workers.
5. Can ICE conduct Form I-9 audits at my workplace?
Yes. ICE has the authority to inspect an employer’s Forms I-9 and related records. In a routine administrative inspection, ICE generally mails a written Notice of Inspection requiring the employer to produce the records after at least three business days. ICE may serve the notice in person and may therefore arrive at a workplace without prior warning to deliver the notice. An employer ordinarily should not be required to produce its Forms I-9 immediately upon service of a routine Notice of Inspection.
ICE may, however, seek records through a subpoena or warrant without providing the ordinary three-business-day notice period. A Notice of Inspection does not by itself authorize ICE agents to enter nonpublic areas of the workplace, conduct a general search, or interview employees. Agents may enter areas open to the public, but entry into nonpublic areas generally requires the employer’s consent, a judicial warrant, or exigent circumstances. Employers should promptly contact counsel and carefully review any subpoena or warrant presented.
Organizations engaged in visible immigrant rights advocacy should assume that increased scrutiny is possible and prepare accordingly.
Recommended steps include:
- Keep Form I-9 records separate from other employee records. Do not include the Form I-9 in an employee’s personnel file. This ensures easy access and limits record production.
- Designate one or more individuals to respond to government visits.
- Train reception and security personnel not to consent to entry into nonpublic areas.
- Conduct internal Form I-9 audits, ideally with employment or immigration counsel.
- Correct technical or procedural errors in a compliant and transparent manner.
- Maintain consistent, neutral employment-verification practices.
- Document compliance efforts.
Good-faith compliance efforts may reduce penalties and demonstrate that the organization has taken its verification obligations seriously. Following an audit, employers should not engage in discriminatory or unnecessary reverification of employees who were not identified as having document deficiencies. Selective reverification based on national origin, ethnicity, or perceived immigration status may violate federal nondiscrimination law. Reverification should occur only when required by law, such as the expiration of an employee’s time-limited employment authorization document noted on the Form I-9.
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The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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