Employment Law Reporter February 2018: California Pushes Back Against Federal Immigration Agenda with AB 450

Image result for immigrationOn January 1, 2018, California’s new Immigrant Worker Protection Act, Assembly Bill 450, became effective.  The law prohibits both public and private employers from providing voluntary consent to workplace raids by immigration enforcement agents.  Specifically, AB 450 prohibits employers from sharing employee records with immigration agents without a subpoena or judicial warrant, with the exception of I-9 Employment Eligibility Verification forms and “and other documents for which a Notice of Inspection has been provided to the employer.”  AB 450 further prohibits employers from allowing immigration agents to enter any nonpublic areas of a workplace without a judicial warrant.  The goal of the new state law is to protect California’s three million plus undocumented employees in response to the federal government’s renewed fervor in cracking down on illegal immigration.

Additionally, AB 450 imposes new notice requirements for employers.  Within 72 hours of receiving a Notice of Inspection of I-9s or other employment records, employers must provide written notice to current employees and their authorized representative (i.e., union or collective bargaining representative), if any.  The employer’s notice must include a copy of the Notice of Inspection, be in the language the employer normally uses to communicate employment information with employees, describe the nature of the inspection (to the extent known), and state the name of the immigration agency conducting the inspection along with the date the employer received the Notice of Inspection.  By July 1, 2018, the Labor Commissioner is required to publish a template notice for employers to use.

Upon reasonable request of an “affected employee,” AB 450 requires that the employer provide an “affected employee” with a copy of the written immigration agency notice that provides the results of an inspection within 72 hours after receipt of the notice.  An “affected employee” is an employee identified by the inspection results as “an employee who may lack work authorization, or an employee whose work authorization documents have been identified by the immigration agency inspection to have deficiencies.”  The employer must also provide written notice of the obligations of the employer and the affected employee arising from the results of the records investigation.  The employer needs to tailor the contents of the notice to relate to the affected employee only.  If possible, the employer should try to deliver the notice by hand at the workplace.  If hand delivery is not possible, then the employer must try to deliver the notice mail and email, if the email address of the employee is known.

Failure to comply with AB 450’s notice requirements can result in penalties of $2,000 to $5,000 for a first violation and $5,000 to $10,000 for each subsequent violation.  The Labor Commissioner is to recover these penalties.

Lastly, AB 450 prohibits employers from verifying their employees’ employment eligibility unless required by federal law.  In other words, employers cannot randomly self-audit their workforce.  They are constricted to verifying eligibility only at a time and in a manner prescribed by federal law.  Employers who violate this provision of AB 450 can face civil penalties of up to $10,000.

AB 450 complicates the interplay between federal immigration law and state employment laws.  Prior to the passage of the Immigrant Worker Protection Act, federal immigration agents could freely enter workplaces and inspect employment records.  The significance of the new law is that California employers are now legally required to assume an adversarial position against certain federal immigration enforcement efforts.  In order to adapt to and comply with the new law, employers should develop policies that reflect AB 450’s requirements and train employees accordingly.  AB 450 is a complicated law and how it will play out is unclear this soon after its enactment.  Thus, employers are highly encouraged to seek assistance from legal counsel, or to at least have a plan in place to contact legal counse, if they receive a Notice of Inspection or a visit from federal immigration officers.

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