JASON RESNICK | WG VICE PRESIDENT AND GENERAL COUNSEL AGRICULTURE & THE LAW
California Places New Rules on Employer Immigration Enforcement Activities 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
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
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).
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
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.”
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).
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
MARCH | APRIL 2018
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