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As the Feds and California Play Tug-Of-War Over Immigration Enforcement, Are Employers Caught in the Middle?

California Governor Jerry Brown recently signed a package of bills into law, affectionately known as “Sanctuary State” legislation. Collectively, these new laws, which take effect on January 1, 2018, will prevent State and local enforcement agencies from acting as deputies for federal immigration enforcement authorities, prevent local authorities from detaining immigrants beyond scheduled release dates or transferring immigrants in State custody to the federal Department of Homeland Security (DHS) subject to specific exceptions. Furthermore, the laws provide immigrants with free access to California schools, hospitals, libraries and courthouses, protections for immigrant tenants when landlords use immigration status as leverage in tenant eviction proceedings and certain public postsecondary education and nonresident tuition exemptions for certain holders of special immigrant visas.

Assembly Bill 450

In addition to the above, the Governor also signed Assembly Bill 450, Employment regulation; immigration worksite enforcement actions (AB 450) into law which will take effect on January 1, 2018. This bill will require employers to police the “police,” otherwise known as ICE (Immigration Customs Enforcement). AB 450 applies to all public and private employers in California and specifically:

  • Prohibits an employer, except as otherwise required by federal law, from providing voluntary consent to an immigration enforcement agent to enter any nonpublic areas of its workplace unless presented with a judicial warrant.

  • Prohibits an employer, except as otherwise required by federal law, from providing an immigration enforcement agent voluntary consent to access, review, or obtain employee records without a subpoena or judicial warrant, unless the employer has been provided a Notice of Inspection (NIF) to inspect I-9 Employment Eligibility Verification forms and other records. [Forms I-9, Employment Eligibility Verification are specifically exempted because federal law provides certain federal agencies, such as ICE and the Department of Labor, access to I-9s for law enforcement purpose. ICE must provide employers at least 3 days’ notice to inspect their I-9s.]

  • Creates penalties for violation of the above ranging from $2,000 to $5,000 for a first violation and $5,000 to $10,000 for each subsequent violation. If a court finds that an immigration enforcement agent entered an employer’s nonpublic area without the consent of the employer or other person in control of the place of labor, then these penalties will not apply.

  • Grants exclusive enforcement of the above to the California Labor Commissioner or Attorney General via civil action.

  • Adds section 90.2 to the California Labor Code requiring employers, except as otherwise required by federal law, to provide current employees, and the employee’s authorized representative (union), notice of any I-9 inspections conducted by an immigration enforcement agency. That notice must be posted in the language the employer normally uses to communicate employment information with its employees within 72 hours of receiving the notice of inspection and contain:

  1. The name of the immigration agency conducting the immigration worksite enforcement action;

  2. The date that the employer received notice of the worksite enforcement action;

  3. The nature of the worksite enforcement action to the extent known; and

  4. A copy of the Notice of Inspection of I-9 Employment Eligibility Verification forms.

[On or before July 1, 2018 the Labor Commissioner is directed to develop a template posting notice for employers to use in compliance with the above.]

  • Requires an employer, upon reasonable request, to provide each affected employee with a copy of the NIF.

  • Requires an employer, except as otherwise required by federal law, to provide each current “affected employee,” and the employee’s authorized representative, a copy of the written immigration agency’s notice describing the results of the inspection of Forms I-9 or other employment records within 72 hours of receipt of such notice. An “affected employee” is an employee identified as lacking work authorization (typically via a Notice of Suspect Documents) or whose work authorization documents have been tagged as deficient (typically via a Notice of Discrepancies). In addition, within 72 hours, the employer is required to provide (via hand delivery, mail or email) each affected employee, and their representative, a separate notice regarding the employer’s compliance obligations as to the affected employee. The notice must contain the following information:

  1. A description of any and all deficiencies or other items identified in the written immigration inspection results notice;

  2. The time period for correcting any potential deficiencies identified by the immigration agency;

  3. The time and date of any meeting with the employer to correct any identified deficiencies; and

  4. Notice that the employee has the right to representation during any meeting scheduled with the employer.

  • Establishes penalties for violation of the above ranging from $2,000 to $5,000 for a first violation and $5,000 to $10,000 for each subsequent violation. However, if a federal agency expressly requests/directs the employer not to provide notice to an employee, these penalties shall not apply.

  • Prohibits an employer from re-verifying employment eligibility of a current employee, at a time or in a manner not required by specified federal law. Each violation is subject to a civil penalty of up to $10,000.

This bill went through several revisions as it wound its way through the California legislature. In order to minimize any conflict with federal laws, certain limiting or “safe harbor” provisions were added including protections for an employer participating in the federal E-Verify system. E-Verify requires employers to execute a Memorandum of Understanding (MOU) with DHS and the Social Security Administration (SSA) mandating cooperation with DHS and SSA in their compliance monitoring and evaluation of E-Verify and, upon reasonable notice, their review of Forms I-9 and other employment records. The MOU also requires that each employer permit these agencies to interview its employees regarding the employer’s use of E-Verify and to respond to DHS requests for information relating to their participation in E-Verify.

Needless-to-say, the current administration did not take kindly to the passage of these new laws. In a statement issued by the ICE Acting Director, Thomas Holman, the agency stated it “will have no choice but to conduct at-large arrests in local neighborhoods and at worksites” in California. Furthermore, in another recent statement, Acting Director Holman announced that he had instructed the agency’s investigative arm, Homeland Security Investigations (HSI), to increase workplace probes “by four or five times,” nationwide.

California and all US employers should prepare

Per federal law, there are stiff penalties for improper hiring practices, including failure to complete, correct, and properly store an I-9 for each employee, as well as for uncorrected errors on existing I-9s. Such penalties include:

  • $216 to $2,156 for each improperly completed I-9;

  • $539 to $21,563 per employee for employing undocumented workers;

  • $178 to $1,782 for unfair documentary practices related to improperly verifying employment; and

  • $445 to $17,816 per violation for citizenship or immigration status discrimination with respect to hiring, firing, and recruitment or referral for a fee.

Moreover, Employers with federal contracts, which are sanctioned for employing undocumented workers, may also face suspension or debarment cutting off their ability to conduct business with the federal government.

Now is the time for all employers to review their I-9 procedures and related compliance practices. Policies should be dusted off and reviewed. No policies? Then time to establish a comprehensive policy that not only provides guidance for I-9, employment verification and reverification but also guards against over-zealous or improper conduct that could trigger immigration discrimination claims. This is especially important for California employers that now face state sanctions for violating citizenship or immigration status discrimination laws.

Conducting an internal I-9 audit is never a bad idea provided it is done properly and will not make matters worse. Too often, employers make the mistake of simply calling for a “do-over” and unnecessarily (and sometimes illegally) generate new I-9s when simply correcting existing I-9s is the proper remedy. Consider working with internal or outside counsel if you are new to this process. Furthermore, conducting an audit under the supervision of counsel may also protect certain findings under the attorney-client privilege.

© Copyright 2020 Squire Patton Boggs (US) LLPNational Law Review, Volume VII, Number 303

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About this Author

Gregory Wald, Immigration Attorney, Squire Patton Boggs Law Firm
Shareholder

Gregory Wald’s experience includes representing multinational and Fortune 500 companies and individual clients in all aspects of immigration law including nonimmigrant visas, and immigrant matters regarding multinational executives and managers, individuals of extraordinary ability and professionals.

He has appeared before the US Department of Homeland Security (DHS), US Department of Labor, US Department of Justice Executive Office for Immigration Review and various federal courts.

415 393 9828