State of California Remains Blocked from Enforcing Certain Provisions of AB 450

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At a glance

• A federal appeals court has affirmed a lower court’s decision to block California from enforcing provisions of a state law that would penalize employers who allow immigration enforcement agents to access nonpublic areas of a worksite or employee records without a judicial warrant or subpoena.
• The state can, however, continue to enforce the provisions that require employers to give notice to employees and their labor unions before and after a federal inspection of I-9 forms.

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A closer look

The Ninth Circuit Court of Appeals has affirmed a July 2018 district court decision that temporarily blocks the State of California from enforcing several provisions of the Immigrant Worker Protection Act (AB 450) which seek to penalize employers who allow immigration enforcement agents to enter nonpublic worksite areas or access employee records without a judicial warrant or subpoena. The Court also upheld the lower court’s decision to allow California to enforce a provision that requires employers to notify employees and their labor unions before and after government I-9 inspections.

Yesterday’s decision was issued in U.S. v. California, a lawsuit filed by the U.S. Department of Justice to challenge the validity of AB 450, as well as AB 103 and SB 54, two other California laws relating to immigration enforcement. Though the Ninth Circuit largely upheld the July district court ruling, including those involving SB 54, a state law relating to immigration detention authority, it remanded back to the lower court a provision in AB 103 relating to the apprehension and transfer of immigration detainees.  

How the court rulings affect employers

• Giving employees notice of I-9 inspections:  Employers continue to be subject to a requirement to notify employees before and after a government inspection of I-9 forms or other employment records. The notice obligation is discussed in more detail below.
• Granting worksite access to immigration enforcement agents:  California continues to be temporarily enjoined from enforcing a provision that prohibits employers from allowing enforcement agencies to enter nonpublic worksite areas without a judicial warrant. Until further notice, employers will not violate state law if they grant access to an immigration enforcement agent who does not have a warrant. However, employers may choose to require a warrant before admitting an enforcement agent.
• Granting immigration enforcement agencies access to employment records:  California continues to be temporarily blocked from enforcing a provision that prohibits employers from allowing immigration enforcement agents to access, obtain or review employee records without a subpoena or judicial warrant. Until further notice, employers will not violate the state law if they allow an enforcement agent to access employee records without a subpoena or warrant. However, employers may choose to require a subpoena or warrant before granting access to records.
• Reverifying employment eligibility:  Current federal law requires employers to conduct reverification before an employee’s existing work authorization expires. California continues to be temporarily blocked from imposing state penalties on employers for reverifying work eligibility at a time or in a manner not required by federal law.

Complying with notice obligations before and after immigration inspections

As noted above, employers remain subject to the notice provisions of AB 450. In order to comply with the state law, employers must continue to:

• Notify employees and labor union representatives before an inspection.  Within 72 hours of receiving a government Notice of Inspection of Form I-9 or other employee records, employers must notify employees and labor union representatives of the federal agency conducting the inspection, the date the employer received the notice of inspection, and the nature of the inspection, and must also provide a copy of the government inspection notice. The employer must also provide potentially affected employees with a copy of the notice if reasonably requested.
• Provide affected employees and their union representatives written notice of the government’s inspection results within 72 hours of receipt.  After the inspection, employers have 72 hours to give affected employees written notice of the results of the inspection, the timeframe for correcting deficiencies, the time and date of any meeting with the employer to correct deficiencies, and notice that the employee has a right to representation during any scheduled meeting with the employer.

Employers with questions about complying with the notice provisions of AB 450 should contact their designated Fragomen professional or the firm’s Government Strategies and Compliance Group. Fragomen is closely tracking U.S. v. California and will provide further updates as developments occur.

This alert is for informational purposes only. If you have any questions, please contact the immigration professional with whom you work at Fragomen.