California’s Immigrant Worker Protection Act became effective January 1, 2018. The law, set forth in AB 450, 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 Fox News report sets out the impending conflict between the Federal government and California:
Now with the fight on immigration issues between the Federal government and California, employers should start reviewing their obligations if Federal immigration officials audit their workplace. This Friday’s Five discusses five issues employers need to understand about the 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. In addition, 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.
5. Start planning now.
Employers should review their current policies and practices to ensure compliance with Federal immigration requirements, including all I-9 requirements. In addition, employers should train and designate one executive to ensure that the tight notice requirements set forth in the Immigrant Worker Protection Act are met should the Federal government ask to enter the workplace or seek review of employment records.
AB 450 adds Sections 7285.1, 7285.2, and 7285.3 to the Government Code, and to add Sections 90.2 and 1019.2 to the Labor Code.