The California Attorney General and State Labor Commissioner issued two documents for California employers to address the California’s Immigrant Worker Protection Act (AB 450). Attorney General Becerra issued an advisory providing an overview of and guidance on the privacy prescriptions under AB 450. DLSE Labor Commissioner Su also issued joint guidance on frequently asked questions to help employers and workers understand and comply with the new state law.
Despite contrary federal law, under the new state law, all employers must limit U.S. Immigration and Customs Enforcement (“ICE”) agents’ access to both the worksite and employee records, and must follow new notice obligations. This law applies to all California employers and was effective January 1, 2018.
Judicial Warrants and/or Subpoenas Required
California employers can no longer allow ICE to enter nonpublic work areas or to access company records. Instead, ICE must present certain types of legal documentation before employers can allow access. Two major points to observe:
- Employers cannot voluntarily allow an ICE agent to enter any nonpublic areas of a business without a judicial warrant, i.e. one issued by a judge. You can take the agent to a nonpublic area to verify the warrant, as long as no employees are present and the employer does not provide consent to search nonpublic areas in the process. Best bet? Call your lawyer IMMEDIATELY.
- Employers cannot voluntarily allow ICE agents to access, review or obtain employee records without a subpoena or judicial warrant. The prohibition does not apply to Form I-9 or other documents for which a Notice of Inspection (“NOI”) was provided to the employer.
Notify Employees Within 3 Days if Possible
Employers must follow specific requirements related to Form I-9 inspections. For example, within seventy-two (72) hours of receiving a Notice of Inspection, California employers must post a notice to all current employees informing them of any federal immigration agency’s inspections of Forms I-9 or other employment records. There are Notice to Employee English and Spanish forms here.
Employers also have obligations once the inspection is over. Within 72 hours of receiving the inspection results, employers must provide each “affected employee” a copy of the results and a written notice of the employer’s and employee’s obligations arising from the inspection. The written notice must contain specific information and must be hand-delivered in the workplace, if possible. An “affected employee” is anyone identified by the inspection results as “potentially lacking work authorization” or having “document deficiencies.” Sounds like my homework in high school, though I rarely received that much notice. It is unclear whether text notice, email notice and/or Social Media (Instagram, SnapChat, Facebook, etc.) notice will suffice, though one Court recently held Instagram service of process was acceptable. For all individuals subjected to a collective bargaining agreement, unions also have the right to receive notices. Union stewards should get on top of this new law as soon as possible.
Penalties are Staggering
An employer that fails to follow any of these notice requirements can be fined between $2,000 to $5,000 for a first violation and $5,000 to $10,000 for each later violation. At the same time, federal penalties for Form I-9 violations can range from a couple hundred dollars to more than $20,000. In the never ending debate between state and federal sovereignty, it seems like the state and federal government is forcing employers to pick their poison – who do we piss off less and how much are we going to pay?
Preparation Is Required
As the time limits are short, preparation is key to meeting the notice requirements. Employers should have a process in place to respond to Notices of Inspection. Employers should identify who in their organization would likely receive a Notice of Inspection and confirm that person knows how to respond.
The law seems to say the federal administrative warrants have no power. We are not sure how employers are expected to interfere or prevent ICE agents with guns and “lowly” federal administrative warrants from entering the work premises. As there is a vague definition of what qualified as a enforcement officer this will create massive workplace issues and litigation. On the federal side, it will be both critical and interesting to see how the DOL deals with standard overtime and wage & hour enforcement. An Employer could argue we thought the inspection was for Immigration purposes. On the state enforcement side will the DLSE now forgive employers for refusing to produce documents at Berman hearings? An employer could possibly argue administrative subpoenas and notices do not apply to undocumented workers. Time, and litigation, will only tell. The entire Attorney General Advisory Opinion can be found here: