Immigration-Related Law Takes Effect in California Affecting All Employers

by Arnall Golden Gregory LLP
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Assembly Bill 450, signed by Governor Brown in October of 2017, is effective this month. It imposes several new immigration-related responsibilities on California employers with respect to worksite enforcement actions and compliance with the requirement under federal law to complete and maintain the Employment Eligibility Verification form (aka “the Form I-9”) for employees.

What employers need to know about the new law:

  • It affects public and private employers;
  • Employers (or their agent) cannot provide voluntary consent to an immigration enforcement agent to enter any nonpublic areas of a place of labor unless they provide a judicial warrant;
  • Employers (or their agent) cannot provide voluntary consent to an immigration enforcement agent to access, review, or obtain an employer’s employee records without a subpoena or judicial warrant. However, there is a carve out in the law for the Form I-9 when Immigration and Customs Enforcement (ICE) agents present a Notice of Inspection (NOI).  Please note that an administrative agency such as ICE can issue subpoenas, meaning subpoenas are not always issued by a court;
  • Employers must provide notice (within 72 hours) to employees and if applicable their union representative, of any Form I-9 inspection by ICE as well as any other inspections of employment records conducted by an immigration agency;
  • Following up on above notice requirement to employees and their union representative, the new law has additional disclosure requirements which must be followed by an employer when requested by an affected employee.  Namely, an employer must, upon request, provide a copy of the NOI and any follow up documentation describing deficiencies identified as a result of the inspection by ICE (typically this would be the Notice of Suspect Documents or Notice of Discrepancies, both issued by ICE);
  • It limits re-verification of employees employment authorization unless specified by federal immigration law; and
  • Allows for civil penalties for non-compliance ranging from $2,000 – $10,000.

All of which is to say that employers in California should have a plan in place to address worksite enforcement actions by ICE agents so as to ensure that agents are not allowed access to nonpublic areas of a place of employment unless they provide a judicial warrant allowing such access.  This plan of action to address office visits by ICE isn’t limited to California employers. As a general rule employers should have a plan in place that when ICE agents arrive at a place of employment to deliver a NOI they are escorted to a private conference room or office and the NOI is handled by a manager or supervisor.  The NOI is the document that starts an administrative worksite enforcement action by ICE and by law, employers are provided with three business days to provide ICE with the Forms I-9 and other documentation listed in the NOI. Employers should train personnel to never waive the three business days requirement to provide ICE with the Forms I-9.  Also, train personnel to not allow ICE agents to interview employees short of a warrant. Finally, as a general rule employers should not handle worksite enforcement investigations without the assistance of legal counsel, especially in the current environment that will focus more heavily on penalizing employers for their failure to comply with the immigration requirements to hire and maintain a legal workforce.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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