Proposed California Law Would Increase Employer Responsibilities When Faced With Immigration Worksite Enforcement Actions
In response to the Trump administration’s stance on immigration enforcement, California is considering legislation (Assembly Bill 450 (Chiu)) which would prohibit employers from providing federal immigration officials with access to nonpublic areas of the workplace without a judicial warrant. While aiming to provide new protections to workers, the bill’s broad language does not eliminate any employer obligations currently arising from Federal law. It does, however, have the potential to create contradictory and burdensome new requirements for employers in cases of government worksite investigations and internal audits conducted for compliance purposes.
AB 450 was introduced in February of this year and has been amended several times. The bill specifically references I-9 audits in many sections, while generally referencing government worksite enforcement actions in others. AB-450 would require employers to, among other things, notify all employees and their representatives, in writing, within 24 hours, that a worksite enforcement action has occurred. The requirement for notification of employee representatives probably refers to unions, but there are other circumstances when an employer may know an employee has legal representation (i.e. active workers compensation claims brought on behalf of employees). This requirement could arguably require an employer to maintain a list of the representatives of all employees for use in the event of such action. Moreover, the bill’s broad language may extend its notification requirements to include routine site visits performed for H-1B, L-1, and other nonimmigrant visa workers, as well as any other immigration-related inquiries conducted by any U.S. government agency, such as the U.S. Department of State or the U.S. Department of Labor. In addition to requiring notice in cases of government action, the bill would also require employers to notify the California Labor Commissioner prior to performing a self-audit of Forms I-9, a process many employers undertake to ensure compliance with Federal law.
The penalties AB 450 proposes for violations are significant. Employers who fail to comply could be assessed from $2,000 to more than $5,000 for a first violation and from $5,000 to more than $10,000 for each subsequent violation.
AB 450 passed the Assembly on May 31 and has been referred to the Senate Labor and Industrial Relations and Senate Judiciary Committees. Because it is keyed fiscal, the deadline for action by these policy committees is June 14, just prior to the legislature’s month long summer recess. We will keep you updated on the bill’s progress as it could have a significant impact on the internal policies of any California employer.