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.

President Obama’s announcement of his controversial plan to provide amnesty for illegal immigrants to remain in the country who meet certain requirements raises a few employment and immigration issues for employers. Putting the politics aside, it is a good time for employers to review their obligations under the law to confirm a worker’s eligibility to work, especially given the new laws taking effect in California in 2015. Below are five areas involving federal and state immigration laws and verification requirements California employers need to be aware of going into 2015.

1. The President’s proposal does not change employers’ current obligation to verify employees’ eligibility to work in the United States.

The President’s proposal will take time to implement, and given the change of power in the Senate in the last election, there is a lot of uncertainty about the effect of the President’s proposal. Even with the political uncertainty, the President’s proposal recognizes the need to create a “provisional legal status” for illegal immigrants that may be provided citizenship. The White House’s website states the following:

Undocumented immigrants must come forward and register, submit biometric data, pass criminal background and national security checks, and pay fees and penalties before they will be eligible for a provisional legal status. Agricultural workers and those who entered the United States as children would be eligible for the same program. Individuals must wait until the existing legal immigration backlogs are cleared before getting in line to apply for lawful permanent residency (i.e. a “green card”), and ultimately United States citizenship. Consistent with current law, people with provisional legal status will not be eligible for welfare or other federal benefits, including subsidies or tax credits under the new health care law.

The details of this system still need to be set out and a process put into place. So employers need to continue to follow the current requirements to verify employment eligibility, and it is not likely that any of the requirements under Federal law will change anytime soon.

2. Expect increased enforcement by federal agencies of immigration and labor laws.

President Obama’s proposal also calls for increasing the monitoring and audit of employers to ensure they are complying with the immigration laws. The President’s proposal seeks a new “labor law enforcement fund” to “ensure that industries that employ significant numbers of immigrant workers comply with labor laws.” The White House’s website touts the fact that ICE has increased his audits of employers since January 2009, and has fined more companies than the Bush administration.

Employers need to review their policies to ensure that they comply with federal and California labor laws. In my practice, I have seen an uptick in DOL audits of employers over the last two years. It is important for California employers to understand the different employment law requirements between federal law and California law, and to ensure that they are complying with the law that applies to their particular workforce.

3. In California, employers need to recognize the new California drivers’ licenses being issued on January 1, 2015 to undocumented workers.

Illegal immigrants will be able to obtain a California driver’s license beginning January 1, 2015. AB 60 was passed in 2013 allowing people who cannot prove their eligibility to be in the United States legally the ability to obtain a driver’s license. The California DMV will begin issuing these drivers’ licenses in the beginning of next year. The licenses will be marked with the phrase “federal limits apply” on the front of the license in the same size and color of text as the other text. This statement will be located in the top right corner above the Class designation on the licenses. On the back of the license, it will have the statement that the license is “not valid for official federal purposes.”

The California drivers’ licenses issued under AB 60 are not valid documentation to prove eligibility to work in the United States. It is important for employers to train their personnel who are responsible for verifying documents when completing the Form I-9 to ensure that the documents presented by the worker are valid for I-9 purposes. In addition, it would be a good time for employers to audit their Form I-9 process and document retention policies.

4. It is illegal for employers to discriminate against workers who present licenses obtained through AB60.

A new law passed in 2014, AB 1660, makes it a violation of California’s Fair Employment and Housing Act (“FEHA”) to discriminate against a worker who presents a driver’s license which was issued to them under AB60 and the individual does not have the legal right to work in the United States. Read this last sentence again and it is not hard to see the rock (federal I-9 obligations) and the hard place (California law) that employers find themselves between. AB 1660 amends FEHA to specify that discrimination on the basis of national origin includes, but is not limited to, discrimination on the basis of possessing a driver’s license issued under this new law. California employers need to be clear on what their obligations are under federal law and carefully navigate these obligations to ensure they do not run afoul of AB 1660 and Vehicle Code section 12801.9.

5. California employers need to treat driver’s license information as confidential employee information.

AB 1660, which amends Vehicle Code section 12801.9, provides that employees’ drivers’ license information obtained by the employer is confidential:

Driver’s license information obtained by an employer shall be treated as private and confidential, is exempt from disclosure under the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code), and shall not be disclosed to any unauthorized person or used for any purpose other than to establish identity and authorization to drive.

Therefore, employers need to review their record keeping procedures to ensure that any driver’s license information for their employees is keep in a secure manner and limit other employees’ access to the data.

Today, February 2, 2009, employers were supposed to transition to start using a new I-9 Form.  However, Friday, U.S. Citizenship and Immigration Services department made the following announcement:

USCIS Delays Rule Changing List of Documents Acceptable to Verify Employment Eligibility Reopens Public Comment Period for 30 days

WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) announced today it has delayed by 60 days, until April 3, 2009, the implementation of an interim final rule entitled “Documents Acceptable for Employment Eligibility Verification” published in the Federal Register on Dec. 17, 2008. The rule streamlines the Employment Eligibility Verification (Form I-9) process.

The delay will provide DHS with an opportunity for further consideration of the rule and also allows the public additional time to submit comments. A notice announcing the delay was transmitted today to the Federal Register. In addition, USCIS has reopened the public comment period for 30 days, until March 4, 2009.

Employers were originally required to use the new form beginning today, on February 2, 2009.  However, employers must now wait until April 3, 2009 to begin using the new form.  Click here for the USCIS’s website for download the Form I-9