California Shields Workers from Immigration Enforcement While On The Job
Effective January 1, 2018, new obligations will be imposed on California employers to shield their employees from immigration enforcement efforts in the workplace. Governor Jerry Brown signed AB 450 along with Senate Bill 54, a “sanctuary state” legislation that limits California state and local law enforcement agencies’ authority to hold, question, and transfer individuals at the request of federal immigration authorities.
Under AB 450, California’s public and private employers will be prohibited from voluntarily consenting to a federal immigration enforcement agent’s request to enter nonpublic areas in the workplace or to voluntarily allowing the agent access to employee records unless the agent provides a judicial warrant.
Employers must also provide notice to employees as follows:
- Pre-Inspection Notice: Within 72 hours of receiving a federal immigration agency’s notice of inspection (“NOI”) of employment records, including I-9 Employment Eligibility Verification forms, an employer must provide notice to each of its current employees. The posted notice must include (1) the name of the immigration agency conducting the inspection; (2) the date the employer received notice of the inspection; (3) the nature of the inspection to the extent known; and (4) a copy of the NOI. On or before July 1, 2018, the Labor Commissioner will create a template of this notice for employers to use.
- Post-Inspection Notice: Within 72 hours of receiving written notice of an immigration agency’s inspection results, an employer must provide each affected employee (and his/her collective bargaining representative, if any) with written notice of the results. The notice must include (1) a description of any and all deficiencies or other inspection results related to the affected employee; (2) the time period for correcting any deficiencies identified by the immigration agency; (3) the time and date of any meeting with the employer to correct the deficiencies; and (4) notice that the employee has a right to be represented during any scheduled meeting with the employer. The notice must be tailored to the affected employee and hand-delivered the employee at the workplace. If this is not possible, the employer must endeavor to mail and e-mail the employee and the employee labor union, if applicable.
Finally, an employee is prohibited from re-verifying the employment eligibility of a current employee outside the time and manner required by federal law, under Section 1324a(b) of Title 8 of the United States Code. Violations of this provision can result in civil penalties up to $10,000.
If an employer fails to comply with AB 450, it will be subject to a civil penalty between $2,000 to $5,000 for a first violation and $5,000 up to $10,000 for each subsequent violation. The penalties are recoverable by the Labor Commissioner.
Employers should carefully review and revise their policies and procedures to ensure compliance with AB 450. They should also train their front-line staff to properly handle any workplace visits by immigration authorities, and to provide the proper pre-inspection and post-inspection notices to its employees.