Tom Cat Bakery in Queens, N.Y., used to supply bread to some of the most expensive restaurants in Manhattan. Now the bakery has a much less desirable notoriety after the company fired 21 immigrant employees, some of whom had worked there for 15 years, with very little warning.
"They threw them out like stale bread," says Daniel Gross, founder and executive director of Brandworkers, a nonprofit group that advocates for food workers.
It started last January when Tom Cat was audited by the Immigration and Customs Enforcement agency (ICE), as part of the Trump administration's aggressive crackdown on undocumented workers. Three months later, management called several dozen of their employees into private meetings and told them that they would be terminated if they couldn't provide proper documentation within 10 days.
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While the employees asked for more time to seek legal counsel and get their affairs in order, the bakery refused and terminated them after the deadline. The result was a local and national outcry that led to daily protests, bad press, lawsuits and now boycotts of Tom Cat Bakery bread from famous restaurants such as La Bernadin and the Jean Georges Restaurant Group.
The most tragic part is that this fiasco, which has ruined families and lives, may have been avoided if Tom Cat Bakery had followed some basic protocol and rules. Here's what you need to do to protect your workers and your business from a similar fate.
Be I-9 audit ready.
Legally, immigration agents may come to your workplace to check if you followed the rules for Form I-9, which confirms a worker's identity and authorization to work in the U.S. So it's important that you keep I-9 forms on file for three years after hiring or one year after the worker's last day of work, whichever is later, according to Laura Huizar, a staff attorney for the National Employment Law Project. But, Huizar also advises that you only ask a worker to fill out the I-9 once unless their work permit is about to expire or you have another valid, legal reason. "Employers cannot just re-verify employees at any time. There has to be a reason," she says.
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Protect your privacy.
While ICE can audit your company, they are not permitted to raid your offices unless they have a warrant signed by a judge. According to Gross, one of Tom Cat's mistakes was giving ICE access to private documents without proper legal authority.
To prevent this from happening to your business, be sure to designate which areas are public and which are private in your workplace. Huizar says that ICE can enter public spaces of a business without a warrant (such as the dining area of a restaurant), but other private areas such as the back office, kitchen or factory are off limits. She advises posting signs in the private areas and making sure that only employees and employers are allowed to enter those areas at all times.
Teach your staff their rights.
If ICE tries to enter a private area of your business without a warrant, your employees are legally permitted to deny them entry. Huizar advises saying, "I can't give you permission to enter. You must speak with my employer." She also suggests training your staff not to interact with ICE agents. If the agents have questions or requests, "workers should say nothing, or say, 'You are not allowed to enter. Talk to my employer.'" You should give your employees a list of lawyers or organizations, such as NELP or the National Immigration Law Center (NILC), that can provide high-quality, free or low cost legal advice, she says.
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Make a written response plan.
"Sit down and think through what you want to happen," Huizar says. "Then write down a plan that works for you and practice what to say and what to do with your workers like a fire drill." There's no one template for how to do this. Huizar recommends connecting with immigration response networks in your area for suggestions. "They provide support with family, legal, financial and media concerns if immigration agents come to your business," she says.
Be transparent.
Tom Cat Bakery allegedly did not tell their employees for the three months that the company was being audited. "So workers had no opportunity at that time to seek council to see what could be done about the lawfulness of the audit," Gross says.
If your company is under ICE audit, he urges businesses to let their employees know immediately to give them proper time to prepare. "We recommend in any situation where there is audit that employees are notified immediately," Huizar says. "Immigration laws are are so complicated. It's crucial to give them a chance to figure out what is going on and speak to their own attorneys about how to rectify the situation."
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Negotiate a fair severance.
"Are you going to consider your workers an adversary or advocate for them?" Gross asks. In the instance of Tom Cat Bakery, information was allegedly withheld, promises were broken, and minimal severance was offered to the employees who were fired, setting the company up for protests and lawsuits. But, not all companies take this approach. Huizar says that her office is often asked by employers facing similar circumstances, "What can we do to help?"
In the event that you have to let an undocumented worker go, she offers the following suggestions: Pay workers any owed wages and any accrued benefits as soon as possible when employment ends. Provide separation pay to workers who cannot return to work and need to support themselves and their families. "Understand that they are going through a very stressful and complicated situation," she says.