California Legislation Update

Regular readers of the blog probably know about my YouTube channel for the Employment Law Report.  This Friday’s Five focuses on recent popular videos I’ve published covering employment law updates, best practices, and an interview with a restaurant consultant.  Hope you enjoy the videos, and please subscribe to the channel to make sure you don’t miss any future updates.

1. 5 Huge Misconceptions About California Employment Law

2. California’s Paid Sick Leave – Quick Update

3.California’s New ABC Test For Independent Contractors

4. My Five Free Resources for California Employers

5. My interview with Salar Sheik from Savory Hospitality

Last Sunday was the deadline for Governor Brown to sign any new bills into law, and I was fielding a lot of questions about the bills that were signed by the Governor (as well as the bills that were vetoed) this week.  So, I thought it would be appropriate for this Friday’s Five to be a round up of my recent content across various social media platforms California employers should not miss:

1. My article on the new employment bills signed by Governor Brown that will impact employers as well as the major bills that were vetoed by the Governor.

2. I published a new episode on my podcast discussing in a bit more detail the new employment bills signed by Governor Brown.

Listen and subscribe my podcast available on Spotify (link here) or iTunes (link here).

3. I’ve also been publishing a few thoughts on Instagram.

4. My recent Facebook post on wage and hour issues that employers need to understand.

5. Portion of a recent panel I moderated on how California employers manage meal and rest breaks in California (on YouTube or available below):

Have a great weekend.

Yesterday, September 30, 2018 was the last day for Governor Brown to sign or veto legislation passed by the California legislature this year.  Here is a list of the employment bills that were signed and will impact California employers in 2019 (the bills will become effective January 1, 2019, unless the bill specifies otherwise):

AB 3109 by Assemblymember Mark Stone (D-Scotts Valley) – Contracts: waiver of right of petition or free speech.  This bill makes unenforceable any provision in a contract or settlement agreement entered into on or after January 1, 2019, that waives a party’s right to testify in an administrative, legislative, or judicial proceeding concerning alleged criminal conduct or alleged sexual harassment on the part of the other party when the party has been required or requested to attend the proceeding pursuant to a court order, subpoena, or written request from an administrative agency or the legislature.

SB 224 by Senator Hannah-Beth Jackson (D-Santa Barbara) – Personal rights: civil liability and enforcement.  This bill adds “investor, elected official, lobbyist, director, and producer among those listed persons who may be liable to a plaintiff for sexual harassment” under Civil Code section 51.9 of who may be personally liable for sexual harassment.

SB 820 by Senator Connie Leyva (D-Chino) – Settlement agreements: confidentiality.  Prohibits provision in settlement agreements that prevents the disclosure of factual information relating to certain claims of sexual assault, harassment, or discrimination.

SB 826 by Senator Hannah-Beth Jackson (D-Santa Barbara) – Corporations: boards of directors. Requires public companies who have principle executive offices in California to have a set number of women on the board of directors.  The Governor’s signing message can be found here.

SB 1252 by Senator Richard Pan (D-Sacramento) – Payroll records.  Existing law grants current and former employees of employers who are required to keep this information the right to inspect or copy records pertaining to their employment, upon reasonable request. Existing law requires an employer to respond to these requests within a specified time.  This bill provides that employees have the right to receive a copy of the employment records described above and apply the associated time requirements and penalty provisions in this context.

SB 1300 by Senator Hannah-Beth Jackson (D-Santa Barbara) – Unlawful employment practices: discrimination and harassment.  Prohibits an employer, in exchange for a raise or bonus, or as a condition of employment of continued employment, from requiring the execution of a release of a claim or right under FEHA or from requiring an employee to sign a nondisparagement agreement or other document that purports to deny the employee the right to disclose information about unlawful acts in the workplace, including, but not limited to, sexual harassment.  The bill also provides that a prevailing defendant is prohibited from being awarded fees and costs unless the court finds the action was frivolous, unreasonable, or groundless when brought or that the plaintiff continued to litigate after it clearly became so.

SB 1343 by Senator Holly Mitchell (D-Los Angeles) – Employers: sexual harassment training: requirements.  This bill requires employers with 5 or more employees, including temporary or seasonal employees, to provide at least 2 hours of sexual harassment training to all supervisors and at least one hour of sexual harassment training to all nonsupervisory employees by January 1, 2020, and one every 2 years thereafter.

SB 1412 by Senator Steven Bradford (D-Gardena) – Applicants for employment: criminal history.  The bill permits employers to conduct background checks for employees under certain narrow exceptions.


Governor Brown vetoed the following employment bills, which will not become effective:

AB 1867 – by Assemblymember Eloise Gómez Reyes (D-Grand Terrace) – Employment discrimination: sexual harassment: records. This bill would have required employers with 50 or more employees to retain records of sexual harassment complaints for at least five years.  The Governor’s veto message can be found here.

AB 1870 – by Assemblymember Eloise Gómez Reyes (D-Grand Terrace) – Employment discrimination: limitation of actions. This bill would have extended the statute of limitations for employment discrimination claims under California’s Fair Employment and Housing Act from one year to three years.  The Governor’s veto message can be found here.

AB 2079 by Assemblymember Lorena Gonzalez Fletcher (D-San Diego) – Janitorial workers: sexual violence and harassment prevention training. The Governor’s veto message can be found here.

AB 2732 by Assemblymember Lorena Gonzalez Fletcher (D-San Diego) – Employment: unfair immigration-related practices: janitorial workers: sexual violence and harassment prevention training. The Governor’s veto message can be found here.

AB 3080 by Assemblymember Lorena Gonzalez Fletcher (D-San Diego) – Employment discrimination: enforcement. The Governor’s veto message can be found here.  I previously wrote about this bill, and the potential effect it would have on employers in California here.

AB 3081 by Assemblymember Lorena Gonzalez Fletcher (D-San Diego) – Employment: sexual harassment. The bill would have created a rebuttable presumption of unlawful retaliation that any adverse employment action within 30 days for anyone that was a victim of sexual harassment.  The bill would have also created joint liability for employers who use contractor labor for any harassment supplied by that labor contractor.  The Governor’s veto message can be found here.

I’ll definitely be writing more about the new laws that will be taking effect.  Please subscribe to the blog (enter email in top right hand column) to receive email notifications when the blog is updated.

[Update: AB 3080 was vetoed by the Governor on September 30, 2018, and will not become law.  Click here to see other bills that were approved by the Governor and will become law for California employers in 2019.]

California legislature passed AB 3080 which prohibits employers from entering into arbitration agreements with employees and now is waiting for Governor Brown’s signature.  It is uncertain whether the Governor will sign the bill into law, as in 2015 the Governor vetoed AB 465 that contained a similar prohibition on arbitration agreements in the workplace.  This Friday’s Five covers five aspects of the bill that California employers need to understand:

1. Bill bars confidential agreements regarding harassment.

AB 3080, if passed, would add Section 432.4 to the Labor Code, which would:

…prohibit any applicant for employment, employee, or independent contractor from disclosing to any person an instance of sexual harassment that the employee or independent contractor suffers, witnesses, or discovers in the workplace or in the performance of the contract, or otherwise opposing any unlawful practice, or from exercising any right or obligation or participating in any investigation or proceeding with respect to unlawful harassment or discrimination.

There is some question about whether this language would prohibit employers from entering into settlement agreements with employees that require confidentiality of its terms.  This practice is prevalent in employment litigation, not only in harassment claims, but in all aspects of employment litigation, such as when settling wage claims.  One rational for keeping a settlement agreement confidential is to be able to settle a claim and stop litigation without admitting liability.  If the amount of settlements are known, it may be viewed as an admission by other third-parties, which could increase the amount of litigation filed against the employer.  The ability to keep settlements confidential aids in settling cases, and if employers cannot confidentially resolve claims it could lead to longer and harder fought litigation.

2. Prohibits arbitration agreements for wage and hour claims, discrimination, harassment, and retaliation.

The bill would also add Section 432.6 to the Labor Code, prohibiting employers from entering into arbitration agreements with employees.  The bill provides that “a person shall not…require any applicant for employment or any employee to waive any right, forum, or procedure for a violation of any provision of the California Fair Employment and Housing Act” or the Labor Code.  This would bar arbitration agreements for claims of harassment, discrimination, or retaliation under the Fair Employment and Housing Act, in addition to barring arbitration agreements that cover wage and hour claims under the Labor Code.

3. Prohibits employers from taking any employment action against employees who refuse to enter into arbitration agreements.

The bill would make it illegal for an employer to:

…threaten, retaliate or discriminate against, or terminate any applicant for employment or any employee because of the refusal to consent to the waiver of any right, forum, or procedure for a violation of the California Fair Employment and Housing Act or [the Labor Code], including the right to file and pursue a civil action or a complaint with, or otherwise notify, any state agency, other public prosecutor, law enforcement agency, or any court or other governmental entity of any alleged violation.

4. Creates personal liability for violations.

The bill designates that “a person” shall not take the actions prohibited in the bill, opening the possibility for individual liability for anyone violating the requirements of the bill.

5. Likely legal challenges to AB 3080 if it is eventually signed into law.

In May 2018, the U.S. Supreme Court ruled in Epic Systems Corp. v. Lewis, that employment arbitration agreements that bar class actions are enforceable.  The vote was 5 to 4 in upholding the use of arbitration agreements in the workplace.  If the bill is signed into law the by the Governor, it will likely be challenged on the grounds that is preempted by the Federal Arbitration Act.

Employers need to keep a close eye on this bill, and even if the bill is passed, there will likely be a lengthy legal challenge on its validity.  Employers should review whether arbitration agreements are appropriate for their workforce with counsel, and need to keep in contact with their attorneys regarding the use of confidentiality agreements and arbitration agreements in the workplace.

I’m moderating a panel discussion on best practices for how to hire and retain good employees at the Western Food Service and Hospitality Expo (WFHE).  The panelists are Joseph Pitruzelli owner of Wurstküche, Francis Drelling General Counsel at Specialty Restaurants Corporation, Naz Moin former director of Human Resources at PizzaRev, and Madelyn Alfano owner of Maria’s Italian Kitchen.  It is on Monday, August 20 at 4 p.m. in the Education Theater (session number S127.  Hope you join us if you are attending the Expo.

In addition, in connection with the California Restaurant Association (CRA), my firm is offering a special an in-person training session that will comply with all the requirements outlined in the regulations regarding California’s Mandatory Sexual Harassment Prevention Training for supervisors (AB 1825) . Supervisors for large employers are required to take this training every two years.  As a bonus, Sexual Harassment Prevention registrants will gain complimentary access to the WFHE show floor, valid day of training (Tuesday, 8/21/18).  The training is at the LA Convention Center, and will take place from 9 to 11:30 a.m. (the show starts at 11 a.m.).  This training is offered to CRA members for FREE and $25 for non-members. Both members and non-members will need to register online here before the day of the training.  Click here for more details about the training and to register.

My firm will have a booth at the show again this year, so if you attend the show, be sure to stop by and say hello.  We are at Booth #1543 (across the aisle from the California Restaurant Association’s booth).  The Expo runs from August 19 to 21 and is at the LA Convention Center.

Also, please stop by our booth and say hi to us if you are attending.  We have some nice swag for readers of the blog!

New California regulations impact employment practices such as English-only policies, height and weight requirements, and documents applicants or employees may be required to provide for employment.  California’s Fair Employment and Housing Council’s new regulations focused on preventing national origin discrimination go into effect July 1, 2018.  Employers should carefully review the new regulations to ensure policies are compliant and managers are following the new requirements.  It is also a good reminder for employers to review handbooks and policies at this mid-year point.  This Friday’s Five focuses on obligations created under the new FEHC regulations:

1. Regulations clarify definition of “national origin” and other terms.

The regulations set forth that “national origin” includes, but is not limited to, the individual’s or ancestors’ actual or perceived:

  • physical, cultural, or linguistic characteristics associated with a national origin group;
  • marriage to or association with persons of a national origin group;
  • tribal affiliation;
  • membership in or association with an organization identified with or seeking to promote the interests of a national origin group;
  • attendance or participation in schools, churches, temples, mosques, or other religious institutions generally used by persons of a national origin group; and
  • name that is associated with a national origin group.

The regulations also define “national origin groups” to include, but are not limited to, ethnic groups, geographic places of origin, and countries that are not presently in existence.

“Undocumented applicant or employee” means an applicant or employee who lacks legal authorization under federal law to be present and/or to work in the United States.

2. New regulations on English-only policies.

The FEHC regulations make it an unlawful employment practice for an employer to adopt or enforce a policy that prohibits the use of any language in the workplace, such as an English-only rule, unless:

(A) The language restriction is justified by business necessity;

(B) The language restriction is narrowly tailored; and

(C) The employer has effectively notified its employees of the circumstances and time when the language restriction is required to be observed and of the consequence for violating the language restriction.

A “business necessity” means an overriding legitimate business purpose, such that:

(A) The language restriction is necessary to the safe and efficient operation of the business;

(B) The language restriction effectively fulfills the business purpose it is supposed to serve; and

(C) There is no alternative practice to the language restriction that would accomplish the business purpose equally well with a lesser discriminatory impact.

It is not sufficient that the employer’s language restriction merely promotes business

convenience or is due to customer or co-worker preference.  In addition, English-only rules violate these rules unless the employer can prove the elements listed above.

Finally, the regulation makes it clear that English-only rules are never lawful during an employee’s non-work time, such as during breaks, lunch, unpaid employer-sponsored events.

3. Height and weight requirements may be discriminatory.

The FEHC believes that an employer’s requirement that certain positions in a company must meet certain height and weight requirements may have the effect of creating a disparate impact on members of certain national origins. The regulations explain that if an adverse impact is established, such requirements are unlawful, unless the employer can demonstrate that they are job related and justified by business necessity. Where such a requirement is job related and justified by business necessity, it is still unlawful if the applicant or employee can prove that the purpose of the requirement can be achieved as effectively through less discriminatory means.  As a side note, earlier in 2018 a California court held that obesity can qualify as a disability under California law as set forth in my prior article here.

4. Employers cannot require applicants or employees to present driver’s license unless certain exceptions apply.

Under the regulations, employers may only require an applicant or employee to “hold or present” a license issued under the Vehicle Code only if (1) the possession of a driver’s license is required by state or federal law, or (2) if the possession of a driver’s license is “otherwise permitted by law.”  The regulations set forth that an employer’s policy requiring applicants or employees to present driver’s license that is not applied uniformly to all employees or is inconsistent with a legitimate business reason would violate the law.  For example, if the possession of a driver’s license is not needed to perform an essential function of the position.

5. Anti-retaliation provisions.

The regulations explain that it is an unlawful employment practice to retaliate against any individual because the individual has opposed discrimination or harassment on the basis of national origin, has participated in the filing of a complaint, or has testified, assisted, or participated in any other manner in a proceeding in which national origin discrimination or harassment has been alleged.

Earlier this week I attended Restaurant Day at the State Capitol with the California Restaurant Association.  It is great to work with restaurant owners and operators in communicating the issues and realities of running a business in California.  If you have never participated in meeting with your local, state, or federal legislator, I highly recommend doing so.  It is a great learning experience, and even though the legislator may not agree with your position, it is a great process to engage your representative and to support your positions.  Given the recent experience, this Friday’s Five focuses on five proposed bills on employment that California businesses must be aware of (and a link at the bottom on how to contact your state representative):

1. AB 2841 (Gonzalez Fletcher) proposes to increase paid sick leave from 24 hours/3 days to 40 hours/5days of paid time off.

California currently requires employers to provide at least 24 hours/three days of paid sick leave to employees (click here for a prior article about California’s paid sick leave requirements).  This proposed bill would increase the amount of paid sick leave days to 5 days/40 hours of paid sick leave. Also, don’t forget about local county and city requirements that may differ from the state requirement.

2. AB 2613 (Burk) proposes to make employers and officers personally liable for additional penalties for wage violations.

The bill proposes to make employers and their officers personally liable for an additional penalty of $200 per employee, per pay period for wages that are not paid on time.  The bill makes it clear that these proposed penalties “are in addition to, and entirely independent and apart from, any other damages or penalties provided for under this code.”

3. AB 2069 (Bonta) proposes to make medical marijuana card holders a protected class under the Fair Employment and Housing Act

This proposed bill would make it unlawful for an employer to discriminate against a person if the discrimination is based upon the person’s status as a qualified patient or person with an identification card entitled to the protections of the Compassionate Use Act of 1996 or the use of cannabis for medical purposes.

The bill makes the medical use of marijuana a protected disability under state law: “When used to treat a known physical or mental disability or known medical condition, the medical use of cannabis by a qualified patient or person with an identification card, as those terms are defined in Section 11362.7 of the Health and Safety Code, shall be subject to reasonable accommodation, including the use of the interactive process.”

Many employers are concerned that providing protections to employees who use marijuana will lead to safety issues at work whereby employees under the influence hurt other employees, customers, or by standards.  Currently, the use of marijuana is not a protected category, as it is still illegal to use under federal law.

4. AB 3080 (Gonzalez Fletcher) proposes to ban employers from restricting employees from disclosing any sexual harassment settlements and bars the use of arbitration agreements in the employment context.

AB 3080 would prohibit employers from entering into contracts that do not allow the employee from disclosing “an instance of sexual harassment that the employee “suffers, witnesses, or discovers in the workplace.”

The bill also prohibits the use of mandatory arbitration agreements in the workplace.  Many employers are utilizing arbitration agreements as a quicker and less costly method of resolving workplace disputes.  The bill, in its current form, would still allow the use of voluntary arbitration agreements.  However, opponents to the bill argue that banning the use of arbitration agreements would run afoul of the Federal Arbitration Act, would be preempted by this federal law.

5. SB 1284 (Jackson) proposes to require companies to disclose pay data reports to the state.

SB 1284 would require employers with 100 or more employees to submit a pay data report to the Department of Industrial Relations.  The report would need to include information such as the number of employees by race, ethnicity, and sex listed by their job categories, and the number of employees “whose annual earnings fall within each of the pay bands used by the United State Bureau of Labor Statistics in the Occupation Employment Statistics survey.”

There are other employment law bills being debated, but I thought these were the top five that employers should be aware of as of April 2018.  Please check back for updates.

Click here for information about how to locate and contact your state representative.

I just updated my Facebook settings to prohibit the software company from conducting facial recognition scans on my photos today due to a notification from Facebook that its software would be analyzing my likeness to automatically recognize me in photos posted on Facebook.  This was a coincidence because today I spoke at the American Bar Association’s National Symposium on Technology in Labor and Employment Law on the topic of biometrics in the workplace.  As I’ve written about previously, Facebook has been sued for violating Illinois’ Biometric Information Privacy Act (BIPA) for the analysis it performs on individual’s images that are uploaded to Facebook, and indeed other companies are dealing with legal issues arising from Illinois BIPA.  This Friday’s Five consists of my five ruminations about biometrics use in the workplace.

1.     Technology is developing faster than society’s perceptions of privacy and the law’s ability to keep up. 

 Technology is quickly developing rapidly on biometric gathering and analysis of the information.  As reported today, cameras will likely have the ability to gather data to understand how an individual is feeling and thinking.  We are not at the point of a Star Trek type of body scanner to determine in an individual is sick or injured, but it is not inconceivable that this will be possible in the near future. Current technology allows the collection of a lot of biometric information that most of the public probably does not know is possible, such as thermo-images, identification by your “ear print,” heartbeats and possibly EEGs. It raises the key question: is your ear print, heartbeat, heat signature, or EEG signals private information?

2.     Only 3 states have legislation regarding the collection and analysis of biometric information of individuals. 

A bit surprising to me, all but three states allow for the collection and analysis by employers or consumer companies of biometric information without any type of disclosures or notice to individuals. Illinois, Texas and Washington state have statues that require some type of notice and voluntary consent before biometric information is collected by a private company.  There is no restriction regarding law enforcement collection of biometric data.

On one hand it is not private – it is publicly shared and information that can be acquired through very unobtrusive means.  There does not have to be any contact (except for the EEG monitoring – which requires probes placed on the scalp) with the individual to obtain this information.  Indeed, this information can often be derived through taking a picture, with nothing more complicated than the camera found on most mobile phones.

On the other hand, the technology being developed can gather more intimate information about people beyond their identity.  Thermo-images, EEG scans, and carbon dioxide monitors can gather a lot more information than previously imaginable about an individual’s health and mood.  As this technology continues to develop, it will be able to derive even more detailed information about people’s health, propensities to become sick, likelihood of having cancer, or maybe even be able to detect cancer.

3.     Biometric information is useful in the employment context. 

Employers have already been using biometric information to track employees and for security issues, such as permitting access to certain areas based on fingerprint or retinal scans.  Employees are able to share passwords very easily to get around password safeguards, but it is harder (but not impossible) for them to share fingerprints or “earprints” (yes, you can be identified by your earprint, which are more reliable than fingerprints).

In the future, employers may be interested in tracking blood pressure, heartbeats, and the general anxiety level of employees for workers’ safety, workers comp claims, and productivity.  To the extent the employee asserts some accident or incident occurred on a certain day, it would be useful to have this biometric information for the same time period.  While it would be useful, does it violate an employee’s right to privacy?  While employees do have a reduced privacy rights a work as long as the employer provides notice to the employee that they may be monitored, California courts have also been clear in holding that employees do not forfeit all privacy rights while at work.

4.     If employers collect biometric information, is it simply creating a database that can be used by other third parties?

My libertarian tendencies cause an uneasy feeling in my stomach when realizing the current capabilities with biometric information.  This is partly while I opted out of Facebook’s facial recognition setting mentioned above.  I believe that many people have a concern that while an individual may consent that a company or an employer may collect and analyze their biometric information, it is unknown about what may happen to this information in the future.  This information is an asset that could be acquired by other companies through company purchases or mergers.  This would result in the individual’s biometric information being available to third-parties that the individual never anticipated would have access to the information.  There are currently no legal safeguards restricting who has access to biometric information, expect the couple of states mentioned above that have passed legislation on this issue.

5.     Once biometric data is hacked, it may be hard to identify people. 

Again, I recognize that employers and companies have legitimate uses for biometric information.  However, the type of information that is contained in biometric information under current technology and the information that will be able to be gathered by future technology is critical to an individual’s identity.  What if the data is hacked and used by a third-party to steal an individual’s identity?  How will one be able to prove that they are who they claim to be if their finger print data base has been changed by a hacker?  These are issues that will have to be resolved as this technology and area of the law are developing.

I’m conducting a poll of the readers to see if they believe biometric information is private or not.  Please vote and share your comments here, and I will report back the data.

My firm is hosting a seminar for business owners, in-house counsel, human resource professionals, and managers to learn about and how to implement best practices at the start of 2018.  Plus, get to see the newly renovated Proud Bird and enjoy some light food and drinks during the mixer.

Our attorneys will be speaking about:

  • New case law developments facing California employers in 2018
  • Minimum wage increases on state local levels in Southern California and how to plan for the year
  • New hiring prohibitions – employers cannot ask about prior salary and new restrictions on conducting background checks, so what can employers still ask?
  • New immigration requirements facing employers under California’s Immigrant Worker Protection Act
  • New case law developments on the enforceability of arbitration agreements

Space is limited, so register early to reserve your spot.

Thursday, February 15, 2018 4:00 PM – 5:00 PM (presentation); 5:00 PM – 6:00 PM (mixer)

The Proud Bird
11022 Aviation Blvd.
Los Angeles, CA 90045

Seminar Program: 4:00 – 5:00 pm
Mixer: 5:00 – 6:00 pm

Cost: Free for firm clients/friends of the firm (if you are a subscriber to the blog, the fee will be waived)
No charge for parking.

To register, visit: www.zallerlaw.com/seminar

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:

http://insider.foxnews.com/2018/01/19/ice-director-homan-possible-california-immigration-raids-criticism-dianne-feinstein

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.