The increasingly polarized political climate has placed California employers in the middle of the dispute between the federal and California governments over immigration policy. On October 5, 2017, Governor Jerry Brown of California signed the Immigrant Worker Protection Act (AB 450) into law. The new statute, which took effect on January 1, 2018, imposes various prohibitions and requirements on California employers with regard to federal immigration enforcement actions in the workplace. For example, whereas employers could previously consent to federal agents’ inspection of the workplace and review of employee records, this is no longer true in California under state law. Violation of AB 450 could result in thousands of dollars in penalties for an employer. As discussed below, the federal government is currently challenging AB 450 on preemption grounds. While the future of AB 450 is uncertain, it remains in effect for now.

POTENTIAL PREEMPTION OF AB 450 BY FEDERAL LAW -

The federal government filed a lawsuit on March 6, 2018, against California, asking for AB 450 and other recently enacted California “sanctuary” laws to be declared constitutionally invalid and seeking injunctions against the enforcement of these laws. The federal government has already moved for a preliminary injunction, arguing that these laws obstruct the enforcement of federal law, including the Immigration Reform and Control Act of 1986, in violation of the Supremacy Clause of the U.S. Constitution. In its court filings, the federal government has cited to Arizona v. United States, a 2012 U.S. Supreme Court case in which certain provisions of Arizona law that criminalized undocumented presence and work and authorized warrantless arrests of aliens believed to be removable from the United States were held to be preempted by federal law. The hearing on the federal government’s preliminary injunction motion is currently set for June 20, 2018, in federal court in Sacramento, California. The scheduling of the hearing, which was set recently on March 29, 2018, was delayed in part by the filing of defendants’ motion to transfer the lawsuit from Sacramento to San Francisco, where a lawsuit by California against the federal government regarding new immigration-related conditions for federal funding is being heard. The court denied defendants’ motion to transfer on March 29, 2018.