California Imposes New Worksite Enforcement Obligations on Employers

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Executive Summary

The Immigrant Worker Protection Act:  

• Prohibits employers from allowing immigration agents to access the worksite or employee records without a subpoena or a court warrant;
• Requires employers to notify employees before and after certain immigration inspections take place; and
• Imposes state penalties for improper reverification of employees and for other violations of the Act.

The Act takes effect on January 1, 2018, but may be challenged in court.

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The situation

California has enacted a law that restricts employers from admitting immigration inspectors to the workplace without a court warrant or subpoena, and requires employers to notify employees before and after certain immigration inspections take place. The Immigrant Worker Protection Act (AB 450) is set to take effect on January 1, 2018, though it may be challenged in court.

Access to the worksite and employee records

Unless required by federal law, AB 450 prohibits employers or their agents from granting immigration inspectors access to nonpublic areas of the worksite without first presenting a court warrant. This includes:

• Immigration and Customs Enforcement (ICE) agents;
• Fraud Detection and National Security (FDNS) inspectors;
• Department of Labor (DOL) auditors; and
• Other immigration enforcement agents.

Access to nonpublic areas is permissible for the purpose of verifying the warrant, and may only be done in a location where employees are not present. 

Similarly, employers are prohibited from granting immigration enforcement agents the ability to access, review or obtain confidential employee records without a subpoena or court warrant unless otherwise required by law. This includes:

• Social Security numbers
• Payroll information
• Other personnel records

The only exception is for I-9 employment eligibility verification forms and other documents for which a Notice of Inspection is provided to the employer in advance. In those circumstances, the employer may grant access without a court warrant or subpoena, but must also notify its employees in advance, as outlined below. 

Under the current law, employers can voluntarily consent to worksite or document inspections.

Notice to employees before and after an immigration inspection

If the employer receives a Notice of Inspection in advance of an enforcement effort, a court warrant or subpoena is not required, but the employer must notify its employees in the language normally used to communicate employment-related matters, as well as their labor union representative of the upcoming inspection within 72 hours of receiving the notice. The posting must include:

• The name of the immigration agency conducting the inspection;
• The date the employer revived the notice;
• The nature of the inspection; and
• A copy of the Notice of Inspection.

The employer must also provide potentially affected employees with a copy of the notice if reasonably requested. 

Following the inspection and after the inspection results are received, the employer has 72 hours to provide affected employees and their labor union representative with a copy of the results, as well as written notice of any obligations imposed on the employer or the affected employee as a result of the inspection. The written notice must contain:

• A description of the deficiencies identified during the inspection;
• The time period for correcting the deficiencies;
• The time and date of any meeting with the employer to correct any deficiencies; and
• A notification that the employee has the right to representation during any meeting scheduled with the employer.

This requirement will make it difficult for employers impacted by immigration enforcement actions to keep the results of such actions confidential.  

Reverifying employment eligibility

The new law bars employers from reverifying the employment eligibility of current employees at a time or manner not required by federal law, even where the employee initiates reverification. Improper I-9 reverification will subject employers to civil fines made payable to the labor commission, as outlined below.

Penalties

A violation of the reverification provision could lead to a civil penalty of up to $10,000.

Failure to satisfy any of the other provisions could result in civil penalties ranging from $2,000 to $5,000 for a first violation and from $5,000 to $10,000 for each subsequent violation.

Looking ahead

The new law was opposed by a number of employer groups because it places California employers in the difficult position of having to determine how to comply with conflicting federal and state obligations. Because immigration agents derive their enforcement powers from federal law, some provisions of the California law could be preempted if challenged in court. Until and unless that happens, however, California employers must put in place procedures to ensure compliance with the law before it takes effect on January 1, including: 

• Creating a plan of action to use when federal immigration agents show up at the worksite. 
• Training front-desk employees to ask immigration inspectors for court warrants and subpoenas.
• Training employees who handle immigration-related matters to comply with the new posting and notice requirements that are triggered when a Notice of Inspection is received, as well as the post-inspection notice requirements that are triggered once the inspection is completed. 
• Training human resources staff on when it is appropriate to reverify employees’ work authorization status and what actions are appropriate following up to an internal audit.
• Ensuring that human resources staff responsible for the I-9 process do not reverify any current employees before it is required by federal law.  

This alert is for informational purposes only. If your organization is affected by the new California law, please contact your designated Fragomen professional or the firm’s Government Strategies and Compliance Group.