During Ward and Smith’s annual In-House Counsel Seminar, four attorneys from the firm placed a spotlight on recent topics that are striking a chord in the workplace.
The playlist outlined best practices for dealing with Immigrations and Customs Enforcement (ICE), changes related to the Equal Employment Opportunity Commission (EEOC) and National Labor Relations Board (NLRB), the lawfulness of DEI, and upcoming developments with potential impacts for employers. This article tackles the topics of Immigration and the NLRB. Our next article will address DEI and considerations for the year ahead.
Immigration
Justin Hill, a labor and employment attorney and a North Carolina State Bar Board Certified Specialist in Employment Law, shared insights on recent operations conducted by ICE, including Charlotte’s Web. “This represented some fairly intense enforcement of immigration policies, with more than 425 arrests,” commented Hill.
The operation sparked significant public outcry, with students in the school district organizing a walkout and Governor Josh Stein denouncing Border Patrol agents. “There is some confusion about whether the operation will continue,” Hill said, “and there is a lack of clarity about what the future holds.”
To adequately prepare, employers should build their knowledge of ICE investigatory processes and develop a response protocol.
A significant change in employment law from March of 2025 was the termination of the Cuba, Haiti, Nicaragua and Venezuela (CHNV) Parole Program. The program was intended to allow parolees from the four countries to seek humanitarian relief and/or enter the workplace. Their permission to live in the US was only for a period of two years and contingent on whether they had a financial sponsor.
The Department of Homeland Security (DHS) terminated the program, and the Supreme Court upheld the decision. “Basically, parolees without a lawful basis outside of this status were told that they had to leave the US immediately,” explained Hill.
Notices were sent to the email address on file with US Citizenship and Immigration Services (USCIS), and employers were provided with lists through E-Verify of employees that were no longer authorized.
Another recent change involving Haiti involved the termination of the country’s Temporary Protected Status (TPS). DHS argued that Haiti no longer met the standards for TPS designation; it was set to expire September 2, 2025, but a recent court injunction blocked it, extending the deadline to February 3, 2026. “This is about Haiti specifically, but we’ve seen many more other countries join the list since then, including South Sudan, Cameroon, Syria, and Afghanistan…it continues to grow,” said Hill.
The primary responsibilities of ICE are to prevent the hiring of unauthorized workers, verify employment eligibility requirements, and enforce the completion of I-9 forms. Inspections, search warrants and subpoenas are three of the investigatory tools that are available to ICE, and each one has a different set of procedures and requirements.
The purpose of a notice of inspection is to review I-9 forms. ICE is required to provide a three day notice, which is normally done through certified mail, hand delivery, or overnight delivery.
“Agents will ask you to waive this notice but if you do, you’re putting yourself at a disadvantage,” Hill advised. “Of course, you want to make sure you’re checking your mail, because if not, it can feel like an unannounced visit, even though you were actually notified.”
Warrants and subpoenas can be triggered if ICE receives information that unauthorized employment is an issue or if there is suspicion the employer is hiring ineligible workers. “We see this a lot with seasonal staff. If they have a reason to look at the IRS records, and it just doesn’t make sense that employment numbers have ballooned for a short amount of time, and it applies to a specific industry that tends to be problematic, then ICE may seize documents and/or search the workplace,” noted Hill.
Multiple agents are typically involved and the inspection will be unannounced. Unauthorized workers could be detained, and the agents could potentially seize documents, computers, and devices.
There are two types of warrants: administrative warrants and judicial warrants. “The key difference is administrative warrants are limited to public spaces like reception areas and lobbies,” explained Hill, “but they aren’t permitted to go into private areas.”
Judicial warrants are issued by a federal or state court and signed by a judge or magistrate. “These authorize access to specific areas listed in the warrant, and you don’t want them to go out of bounds unless there’s a reason for it; however, the consequences for refusal are very serious,” added Hill.
Similarly, an immigration subpoena constitutes a written federal document that is signed by an immigration judge or officer. Judicial subpoenas, however, will originate from a court order. These will compel the production of certain documents, and the consequences for non-compliance are substantial.
How to Respond
Hill recommends creating a response protocol for employees to refer to in the event of an investigation. The first step is to make a copy or take a picture of the subpoena or warrant.
“The next step is contacting the person that has been designated to handle these situations, as well as the in-house counsel,” notes Hill. “Further, the agent should be told that company policy requires a consultation with those individuals before they can proceed.”
Training a group of key employees is advisable, such that each person understands the procedures for responding to an investigation. “Make sure to have someone verify the signature on the warrant or subpoena, the expiration date and scope of the search,” advised Hill.
“Get the agent’s name and the name of their supervisor. We’ve heard folks saying that agents are doing things wrongfully and illegally under Operation Charlotte’s Web. We have even heard the Governor tell people to record it if something is happening that is unlawful,” commented Hill.
The operations in the search areas should be shut down, and a company representative should be assigned to each agent for the purpose of taking notes and recording video. An inventory of any documents or items that are seized should be provided.
“It is critical to explain why documents are vital to you, and if there are things that are covered under your attorney client privilege, you need to make sure that the person handling this understands exactly what falls under those lists,” added Hill.
Managers should be advised not to provide a statement. Non-managers should not be told to refuse to speak to agents, but they may be advised of their right to decline.
Being calm, courteous and professional is essential. “Don’t interfere with the agents. Comply with their demands but don’t offer any extra information. Keep detailed records of any interactions, such that you can follow up just the same as they will,” concluded Hill.
EEOC and NLRB Updates
Genesis Torres, a labor and employment attorney, released a vibrant remix of recent actions by the EEOC and NLRB. An executive order from April of 2025 was the first headline-maker, as it directed federal agencies to deprioritize disparate impact enforcement and called for the review and potential repeal of statutes and regulations that rely on this liability theory.
Officially titled Restoring Equality of Opportunity and Meritocracy, it directed the Attorney General and EEOC Chair to assess all pending investigations and litigation that rely on disparate impact theory and take appropriate action consistent with the order. “This limited federal enforcement but a vital distinction is that private litigants still retain their right to pursue disparate impact claims under Title VII,” advised Torres.
The order represents a profound departure from existing precedent, however, the majority of significant systemic cases argued by the EEOC have been pattern over practice discrimination cases, not disparate impact. “Disparate impact liability involves facially neutral policies that have unintended discriminatory effects”, notes Torres, “while pattern or practice requires the EEOC to demonstrate systemic intentional discrimination, which is a disparate treatment theory of liability, not impact.”
A record-scratching tune from May of 2025 universally vacated portions of EEOC Enforcement Guidance on Harassment, particularly related to protections based on sexual orientation and gender identity. In Texas v. EEOC, a federal court held that Title VII is rooted in the biological understanding of sex.
“This recalibrated the weight of the EEOC’s interpretive guidance,” explained Torres, “so if you go to the commission website and look up enforcement guidance on harassment, you’ll see portions that were lined through or shaded out with respect to sexual orientation and gender identity.”
Torres added that EEOC Chair Lucas has made it clear that she is focused on “removing gender ideology and plans to align sex-based harassment policies with the (presidential) administration’s position.”
At the time of the ruling, the EEOC did not have a quorum. “Now, the EEOC does have a quorum, which allows it to make rules, issue new policies, vote on high impact litigation and formally rescind guidance documents,” said Torres. “This means there could potentially be a shift from the EEOC on this point.”
In February of 2025, the acting General Counsel of the NLRB rescinded more than 30 memoranda that were issued by his predecessor. Some of the most significant included non-disparagement provisions, confidentiality provisions and severance agreements, and the legality of many non-compete agreements.
The surreptitious recording of collective bargaining sessions was deemed to be unlawful. Union salting, which refers to professional organizers seeking employment with the intent to unionize a workplace, is another issue that received additional guidance this year.
“Salts are protected, but they may lose protection if they are not genuinely interested in an employment relationship”, noted Torres.
The memoranda provides guidance that employers may contest whether an applicant is genuinely interested in a job by using evidence such as refusing similar employment in the recent past, incorporating belligerent or offensive comments on an application or during an interview, and engaging in disruptive, insulting or antagonistic behavior during the application process.
