On January 1, 2018, AB 450, the Immigrant Worker Protection Act went into effect. The law was the California Legislature’s response to an anticipated increase in federal immigration enforcement actions under the Trump administration and was aimed at protecting the roughly 1.75 million undocumented and falsely documented workers in California from possible deportation.
The law restricts employers from giving immigration enforcement officials unfettered access to nonpublic parts of the workplace. It also requires employers to notify their employees of immigration inspections. Finally, it prohibits employers from reverifying the employment authorization of existing employees. The new law sets up a tightrope that employers must carefully tread to avoid running afoul of federal immigration laws, on the one hand, and the state’s worker protection scheme, on the other. Employers that violate the new law can face civil penalties of up to $10,000 per violation.
No Voluntary Consent
AB 450 prohibits employers from providing “voluntary consent” to immigration enforcement agents seeking access to “nonpublic” areas of the workplace without a “judicial warrant.” Indeed, employers are still obligated to give immigration agents access to search the nonpublic areas when presented with a judicial warrant or valid subpoena. A judicial warrant will typically have the name of the court that issued the warrant (e.g., “United States District Court”). A “Warrant for Arrest of Alien” issued by the U.S. Department of Homeland Security is not a judicial warrant, and employers should not grant access based on such a non-judicial “warrant.” Employers should understand that not all warrants appear the same, and that they may wish to consult with an attorney when presented with a purported warrant.
The new law also prohibits employers from giving “voluntarily consent” to immigration enforcement agents seeking to access, review or obtain “employee records” without a subpoena or Notice of Inspection (NOI).
Two Types of Notice
In addition, the law establishes two notice requirements for employers that receive Notice of Inspection requests to inspect Form I-9 Employment Eligibility Verification forms or other employment records. The NOI is by far the most common method immigration agents use to inspect I-9 forms. Within 72 hours of receiving notice of the inspection, notice must be posted including the following information:
• The name of the immigration agency conducting the inspection.
• The date the employer received NOI
• The nature of the inspection, if known.
• A copy of the NOI
The labor commissioner has developed a template “Notice to Employee” which can be found in English (http://www.dir.ca.gov/DLSE/LC_90.2_EE_Notice.pdf) and Spanish (http://www.dir.ca.gov/DLSE/LC_90.2_EE_Notice_Spanish.pdf). This notice to employees must be posted by the employer in the language normally used by the employer to communicate employment-related information to the employee. In addition to posting the notice in the workplace, employers must give the notice to the employees’ collective bargaining representative(s), if any.
After receiving the inspection results from the immigration agency, AB 450 requires employers to provide targeted notice to “affected employees” and their authorized representatives (if any) within 72 hours. Affected employees are those identified by the agency as potentially lacking current and valid work authorization or having deficiencies in their Form I-9 documents. Employers must deliver the notice to each affected employee and his/her representative by hand at the workplace if possible, or by mail and email (if known), if hand delivery is not possible. Each notice must relate to the affected employee only and must contain:
• A copy of the inspection results (with information about other employees redacted).
• Notice of the obligations of the employer and the affected employee arising from the results of the inspection
• A description of the identified deficiencies or other items identified by the immigration agency in the inspection results that relate to the affected employee;
• The time period for correcting the deficiencies.
• The time and date of any meeting with the employer to correct the deficiencies.
• Notice that the employee has the right to representation during any meeting scheduled with the employer.
The law, which is enforced by the Labor Commissioner and California’s Attorney General, carries stiff penalties. Employers that violate either the access or notice provisions of the law can face civil penalties between $2,000 to $5,000 for a first violation and $5,000 to $10,000 for each subsequent violation.
Finally, AB 450 prohibits an employer, or a person acting on behalf of an employer, from reverifying the employment eligibility of any current employee at a time or in a manner that is not required by federal law. Under AB 450, employers are still permitted to reverify employment eligibility, and must do so under federal law when the employee’s employment authorization or EAD expires. The penalty for violating this provision of AB 450 is a civil penalty up to $10,000.
Compliance with AB 450 does not compel an employer to violate federal law. Rather, it may require employers in certain situations to decline requests for voluntary cooperation by federal agents. However, the statute makes clear that its provisions only apply “[e]xcept as otherwise required by federal law” and do not restrict or limit an employer’s compliance with any memorandum of understanding governing use of the federal E-Verify system.
Nevertheless, immigration enforcement now requires employers to navigate a complicated dichotomy between state and federal laws. California employers should consider the following steps in order to be prepared for immigration enforcement activities:
• Designate one or two representatives within the company to handle any inquiries from immigration agents.
• Train managers, HR staff, and first points of contact (e.g., receptionist) on the requirements of AB 450 so they are prepared to handle encounters with immigration agents.
• Voluntary self-audits are encouraged to maintain compliance with federal I-9 requirements, but employers should proceed cautiously before conducting reverification of current employees’ work authorization.
• Contact qualified immigration counsel immediately upon receiving an NOI or a visit from immigration agents.