New Law Imposes Obligations on California Employers When Interacting with Federal Immigration Authorities

New Law Imposes Obligations on California Employers When Interacting with Federal Immigration Authorities

By Arielle M. Rediger, Esq.

Beginning January 1, 2018, AB 450 will regulate California employers’ interaction with federal immigration enforcement agents. The bill applies to both public and private employers and regulates access to nonpublic areas and employee records, notice of record inspections, and verification of employment eligibility.

Access

The provisions regulating access prohibit two specific actions by an employer or a person working on behalf of an employer. The first prohibits giving voluntary consent to an immigration enforcement agent to enter any nonpublic areas of a place of labor, unless there is a judicial warrant. However, the agent may be allowed into a nonpublic area for purposes of verifying whether there is a judicial warrant, provided no consent is given to search the nonpublic area. The second prohibits giving voluntary consent to an agent to access, review, or obtain employee records without a subpoena or judicial warrant, but does not apply to I-9 Employment Eligibility Verification forms and other documents for which a Notice of Inspection has been provided.

Both access provisions of AB 450 are enforced exclusively by the Labor Commissioner or the Attorney General through a civil action. Civil penalties are between $2,000 and $5,000 for a first violation, and between $5,000 and $10,000 for each subsequent violation. Because these provisions are in the Government Code rather than the Labor Code, an employee may not enforce them via the Private Attorneys General Act (PAGA).

Notice

AB 450 creates two related notice requirements with regard to an immigration agency’s inspection of I-9 Employment Eligibility Verification forms or other employment records.

First, an employer must notify each current employee of any such inspection by posting the following information in the language the employer normally uses to communicate with employees: (1) the name of the immigration agency conducting the inspection, (2) the date the employer received notice of the inspection, (3) the nature of the inspection to the extent known, and (4) a copy of the Notice of Inspection of I-9 Employment Eligibility Verification forms. The notice must be provided within 72 hours of receiving notice of the inspection, and must also be provided to the employee’s union representative, if any. AB 450 also requires the Labor Commissioner to develop by July 1, 2018, a template notice employers may use to comply with these requirements.

Second, within 72 hours of receiving the written immigration agency notice that provides the results of the inspection, an employer must provide to each current affected employee (and their union representative, if any) a copy of the agency’s notice and written notice of the obligations of the employer and affected employee arising from the inspection results. The notice must relate only to the affected employee, be hand-delivered at the workplace if possible (or if not possible, by mail and email if the email address is known), and contain the following: (1) a description of any and all deficiencies or other items identified in the inspection results notice relating to that affected employee, (2) the time period for correcting any items so identified, (3) the time and date of any meeting with the employer to correct such deficiencies, and (4) notice that the employee has the right to representation during any meeting scheduled with the employer.

The Labor Commissioner (or an aggrieved employee via a PAGA action) may recover a civil penalty between $2,000 and $5,000 for a first violation, and between $5,000 and $10,000 for each subsequent violation.

Verification

AB 450 adds a Labor Code section prohibiting an employer from reverifying the employment eligibility of a current employee at a time or in a manner not required by federal law. There is a civil penalty of up to $10,000 for a violation, recoverable by the Labor Commissioner (or an aggrieved employee via a PAGA action).

It also adds one Government Code section and one Labor Code section providing that nothing in the applicable chapters shall restrict or limit an employer’s compliance with a memorandum of understanding governing the use of the federal E-Verify system.

Steps Employers Should Take Before January 1, 2018

Prudent employers will use the time available before the new year to ensure compliance with the new law and reduce the likelihood that they will be sued for violating any of its provisions. Employers should designate a knowledgeable person or department to handle all inquiries from federal immigration enforcement agents. All managers and supervisors should be informed verbally and in writing of the new requirements, especially that they cannot voluntarily consent to agents accessing nonpublic areas or records without a proper warrant, subpoena, or court order. Employers should also develop template notices that comply with the above requirements for use between January 1, 2018 (when the law takes effect) and July 1, 2018 (when the Labor Commissioner must provide form notices employers may use).