Authorship credit: Matthew W. Hoyt, James D. Levine, Pamela D. Nieto and Alan C. deVries
With clear indications from the Trump administration that worksite immigration enforcement is near the top of the agenda for 2018, the state of California has taken a pre-emptive step to protect workers who may be affected. On Jan. 1, 2018, Assembly Bill No. 450 (AB 450) will take effect and impose new rules governing how public and private employers in California interact with Immigration and Customs Enforcement (ICE) and other immigration enforcement agents.
California lawmakers cited the Trump administration’s call to hire 10,000 more ICE agents and its intent to make undocumented immigrants an enforcement priority as reasons for enacting AB 450. AB 450 became even more relevant in October when acting ICE director Thomas Homan said ICE would increase worksite enforcement actions by four to five times in 2018, targeting unauthorized workers and the employers who hire them.
While all U.S. employers would be wise to take preventive measures in the face of these announcements, California employers must deal with new legal obligations courtesy of AB 450. The new law has three main components. First, AB 450 prohibits employers from voluntarily consenting to warrantless requests by immigration authorities to search workplaces and employee records. Second, it creates notice requirements related to immigration inspections. Third, it prevents employers from reverifying the employment eligibility of current employees. Employers who violate AB 450 will face penalties of up to $10,000 per violation.
Requirement 1: No consent for searching workplaces and employee records
Under current federal law, immigration agents may enter nonpublic areas of a workplace only if they have a warrant or consent from the employer. AB 450 prohibits employers from providing this voluntary consent. Employers may permit immigration agents to enter and search the nonpublic areas of a workplace only based on a judicial warrant. Employers may take agents to a nonpublic area to verify the warrant as long as no employees are present and the employer does not consent to a search.
AB 450 also prohibits employers from voluntarily consenting to immigration agents accessing, reviewing or inspecting employee records unless required to do so by a subpoena or Notice of Inspection (NOI).
The penalty for violating these provisions is $2,000 to $5,000 for the first violation and $5,000 to $10,000 for each subsequent violation. The labor commissioner or attorney general of California has exclusive authority to enforce AB 450 through civil action.
Requirement 2: Notice requirements for inspections of employee records
AB 450 creates two different notice requirements in connection with inspections of employment records (e.g., I-9 Employment Eligibility Verification forms) by immigration agencies. Employers must give notice to employees of upcoming inspections – and the results of such inspections.
When employers initially receive NOIs, they must post notices for their employees and must provide notice to collective bargaining representatives, if any, within 72 hours. The labor commissioner will develop a template for posting notices by July 1, 2018, but employers who receive an NOI before the template is completed must create their own notice. The posted notice must be in all languages the employer typically uses for posting employee notices, and must include:
- The name of the immigration agency conducting the inspection.
- The date the employer received the NOI.
- The nature of the inspection, to the extent known.
- A copy of the NOI.
After receiving results of inspections from immigration agencies, AB 450 requires employers to notify affected employees within 72 hours. Affected employees are those identified in the inspection results as possibly lacking work authorization or having deficiencies in their work authorization documents. Employers must deliver the notices to each affected employee and their bargaining representative by hand at the workplace if possible, or by mail and email (if known). Each notice must relate to the affected employee only and must include:
- A copy of the notice of inspection results from the immigration agency (redacting any information about other employees).
- A description of the obligations of the employer and the employee.
- A description of the identified deficiencies.
- The time period for correcting the deficiencies.
- The time and date of any meeting with the employer to correct the deficiencies.
- Notice that the employee has the right to representation during any meeting.
The fines for violating the notice provisions of AB 450 are the same as above: $2,000 to $5,000 for the first violation and $5,000 to $10,000 for each subsequent violation.
Requirement 3: No reverification of employment eligibility
The final component of AB 450 prohibits employers from reverifying their current employees’ employment eligibility at a time or in a manner not required by the federal I-9 employment eligibility verification process as set forth in 8 U.S.C. § 1324a(b), unless otherwise required by federal law. Circumstances under which employers may reverify employment eligibility without violating AB 450 include, for example, when employees’ temporary work authorization pursuant to visa status is about to expire. The penalty for violating this section of AB 450 is a fine of up to $10,000.
Practical steps for California employers
Although each component of AB 450 has an exception for conduct required by federal law, it may be difficult for employers to navigate the confluence of AB 450 and federal law unscathed. For example, failing to self-audit and correct I-9 errors may lead to penalties under federal law, but attempts to reverify or correct I-9 errors for current employees may violate AB 450. Because of the potential conflicts with federal immigration law, opponents may challenge AB 450’s constitutionality.
For now, California employers should consider the following precautions to ensure compliance with AB 450 by Jan. 1, 2018:
- Designate one or two representatives within each company office to handle any inquiries from immigration agents.
- Train managers and HR to handle encounters with immigration officials consistent with AB 450.
- Exercise caution in self-auditing I-9s and addressing errors or expired documentation. Voluntary self-audits are helpful to maintain compliance with federal I-9 requirements, but self-audits that involve reverification of current employees’ work authorization may trigger AB 450 if reverification is not required by federal law. Employers will have to ensure that reverification is required by federal law and that the reverification process is handled by the book.
- Contact qualified immigration counsel immediately upon receiving an NOI or a visit from immigration agents.