Bottom Line Compliance with AB 450 does not compel an employer to violate federal law. Rather, it may require employers in certain situations to decline requests for voluntary cooperation by federal agents. However, the statute makes clear that its provisions only apply “[e]xcept as otherwise required by federal law” and do not restrict or limit an employer’s compliance with any memorandum of understanding governing use of the federal E-Verify system. Nevertheless, immigration enforcement now requires employers to navigate a complicated dichotomy between state and federal laws. California employers should consider the following steps in order to be prepared for immigration enforcement activities: • Designate one or two representatives within the company to handle any inquiries from immigration agents. • Train managers, HR staff, and first points of contact (e.g., receptionist) on the requirements of AB 450 so they are prepared to handle encounters with immigration agents. • Voluntary self-audits are encouraged to maintain compliance with federal I-9 requirements, but employers should proceed cautiously before conducting reverification of current employees’ work authorization. • Contact qualified immigration counsel immediately upon receiving an NOI or a visit from immigration agents.
• Notice of the obligations of the employer and the affected employee arising from the results of the inspection • A description of the identified deficiencies or other items identified by the immigration agency in the inspection results that relate to the affected employee; • The time period for correcting the deficiencies. • The time and date of any meeting with the employer to correct the deficiencies. • Notice that the employee has the right to representation during any meeting scheduled with the employer. The law, which is enforced by the Labor Commissioner and California’s Attorney General, carries stiff penalties. Employers that violate either the access or notice provisions of the law can face civil penalties between $2,000 to $5,000 for a first violation and $5,000 to $10,000 for each subsequent violation. No Reverification Finally, AB 450 prohibits an employer, or a person acting on behalf of an employer, from reverifying the employment eligibility of any current employee at a time or in a manner that is not required by federal law. Under AB 450, employers are still permitted to reverify employment eligibility, and must do so under federal law when the employee’s employment authorization or EAD expires. The penalty for violating this provision of AB 450 is a civil penalty up to $10,000.
22 Western Grower & Shipper | www.wga.com MARCH | APRIL 2018
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