California employers must now comply with the new Immigrant Worker Protection Act (AB 450), which became effective on January 1, 2018. Under the new law, employers may not voluntarily consent to an immigration enforcement agent entering a non-public area at a place of employment unless the agent provides a judicial warrant.
With the exception of responding to a properly issued Notice of Inspection (NOI) of Form I-9s or other records maintained under the federal immigration laws, employers may not grant voluntary consent to an immigration enforcement agent to access, review or obtain employee records without a “subpoena or judicial warrant.”
In addition, an employer must give written notice to employees and their authorized representative (e.g., union) of any immigration agency’s review of employment records within 72 hours of receiving the request. The notice must:
- Be posted in the language the employer normally uses to communicate with employees;
- Include the name of the immigration agency conducting the inspection;
- Include the date the employer received the notice;
- Explain the nature of inspection (to the extent known); and
- Include a copy of the Notice.
In addition, AB 450 contains the following provisions:
- Employers cannot re-verify a current employee’s employment eligibility, except as otherwise required under federal law;
- Employers must provide “affected employees” (i.e., those identified by the immigration agency as possibly lacking work authorization) with a copy of the immigration agency’s notice of the employer’s receipt of the results of the inspection (the “Notice of Suspect Documents” (“NSD”) within 72 hours, in addition to a written notice of the obligations of the employer and the affected employee arising from the results. This notice must be hand-delivered, if possible; otherwise delivered by mail and email. It should also contain:
- A description of any deficiencies identified in the notice;
- The time period for correcting deficiencies;
- The time and date of any meeting with the employer to correct deficiencies; and
- Notice that the employee has the right to representation during any meeting scheduled with the employer.
Employers may be subject to civil fines ranging from $2,000 to $10,000 per violation, if they fail to comply with new law.
Employers should review their policies and procedures to ensure compliance with the new law. Managers, supervisors and receptionists should be trained on how to comply with these new requirements with respect to responding to immigration agency requests. Procedures should be implemented for responding to immigration worksite enforcement actions and ensuring that the notifications requirements are adhered to within the mandated timelines.
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