In addition to the “sanctuary state” legislation signed into law by Governor Brown yesterday, the Governor also signed AB 450 into law.  The law is effective January 1, 2018, and requires, among other items, employers to verify that immigration officials have a judicial warrant or subpoena prior to entering the workplace and for employers to provide notice to employees if there has been a request to review the employer’s immigration documents, such as Form I-9s.  The new law puts employers in a difficult situation of having to comply with federal immigration law obligations on one hand and state law requirements on the other, with large penalties that could result for violations of either law.  This Friday’s Five discusses five key aspects California employers must understand about the new obligations created by AB 450.

1. Employers may not voluntary consent to an immigration enforcement agent to enter any nonpublic areas of “a place of labor” without a subpoena or judicial warrant.

The new law provides that employers cannot provide voluntary consent to an immigration enforcement agent to “access, review, or obtain the employer’s employee records without a subpoena or judicial warrant.”  This prohibition does not apply to I-9 Employment Eligibility Verification form and “other documents for which a Notice of Inspection has been provided to the employer.”

2. Employers must give notice to employees of any immigration review of employment records.

Employers are required to post information about any inspections of I-9 Employment Eligibility Verification forms or other employment records conducted by an immigration agency within 72 hours of receiving notice of the inspection.  The notice must be posted in the language the employer normally uses to communicate employment-related information to the employee.  In addition, the notice must include the following information:

(A) The name of the immigration agency conducting the inspections of I-9 Employment Eligibility Verification forms or other employment records.

(B) The date that the employer received notice of the inspection.

(C) The nature of the inspection to the extent known.

(D) A copy of the Notice of Inspection of I-9 Employment Eligibility Verification forms for the inspection to be conducted.

The Labor Commissioner is required to publish a template for employers to use by July 1, 2018.

3. An employer, upon reasonable request, shall provide an “affected employee” a copy of the Notice of Inspection of I-9 Employment Eligibility Verification forms.

An “affected employee” is an employee identified by the immigration agency inspection results to be “an employee who may lack work authorization, or an employee whose work authorization documents have been identified by the immigration agency inspection to have deficiencies.”

The employer is required to provide the affected employee a copy of the written immigration agency notice that provides the results inspection within 72 hours of after receipt of the notice. In addition, the employer shall also provide written notice of the obligations of the employer and the affected employee arising from the results of the records investigation.  The notice needs to relate to the affected employee only and shall be delivered by hand at the workplace if possible and, if hand delivery is not possible, by mail and email, if the email address of the employee is known.

4. Except as otherwise required by federal law, employers cannot reverify the employment eligibility of a current employee at a time or in a manner not required by federal law

Violations of this provision can result in civil penalties up to $10,000.

5. Potential penalties.

Penalties for failure to provide the notices required under the new law are $2,000 up to $5,000 for a first violation and $5,000 up to $10,000 for each subsequent violation.  The penalties will be recovered by the Labor Commissioner.

 

 

Assemblymember David Chiu (D-San Francisco) introduced a bill – AB 450 – that would put employers between the federal government and the state of California in the immigration debate.  Basically, the bill imposes penalties on employers who cooperate or do not notify the state of federal immigration actions taking place at their locations.  As set out in a statement issued by Assemblymember Chiu, the bill does the following:

  • Protecting workers from being wrongfully detained in their workplace by requiring employers to ask for a judicial warrant before granting ICE access to a worksite.
  • Preventing employers from sharing confidential employee information, such as a social security number, without a subpoena.
  • Requiring employers to notify the Labor Commissioner and employee representative of a worksite raid. Employers must also notify the Labor Commissioner, employees, and employee representatives of an I-9 audit.
  • Preventing employers from retaliating against employees who report labor claims by enabling workers crucial to a labor claim investigation to receive certification from the Labor Commissioner. This certification would both protect the worker and aid in successfully adjudicating labor violations.

The current version of the bill creates the following obligations for employers:

  • prohibit an employer from providing a federal immigration enforcement agent access to a place of labor without a properly executed warrant and would prohibit an employer, or a person acting on behalf of the employer, from providing voluntary access to a federal government immigration enforcement agent to the employer’s employee records without a subpoena
  • require an employer to provide an employee, and the employee’s representative, a written notice containing specified information, in the language the employer normally uses to communicate employment information, of an immigration worksite enforcement action to be conducted by a federal immigration agency at the employer’s worksite, unless prohibited by federal law
  • require an employer to provide to an affected employee, and to the employee’s representative, a copy of the written federal immigration agency notice describing the results of an immigration worksite enforcement audit or inspection and written notice of the obligations of the employer and the affected employee arising from the action
  • require an employer to notify the Labor Commissioner of a federal government immigration agency immigration worksite enforcement action within 24 hours of receiving notice of the action and, if the employer does not receive advance notice, to immediately notify the Labor Commission upon learning of the action, unless prohibited by federal law
  • require an employer to notify the Labor Commissioner before conducting a self-audit or inspection of specified employment eligibility verification forms, and before checking the employee work authorization documents of a current employee, unless prohibited by federal law

Failure to meet any of the obligations would create liability for employers of not less than $10,000 and not more than $25,000 for each violation.  This creates a potential legal conundrum for employers who have a responsibility to comply with federal immigration laws.  Under this proposed bill employers could face fines under state law for not following these requirements, but on the other hand employers face penalties for not complying with federal immigration laws.  The bill makes employers responsible for these difficult legal determinations in interpreting state and federal obligations, in addition to requiring them to become legal experts in determining if the federal government has a “properly executed search warrant” for example.