By Janice Luo

California Governor Jerry Brown has signed the Immigrant Worker Protection Act (AB 450), which restricts public and private employers in California from admitting immigration inspectors to the workplace without a judicial warrant.  It also requires employers to notify their employees before and after certain immigration inspections take place.  The new law, which adds Sections 7285.1, 7285.2, and 7285.3 to the California Government Code, and Sections 90.2 and 1019.2 to the California Labor Code, will take effect on January 1, 2018.

In conflict with the U.S. Immigration and Customs Enforcement’s (ICE) plans to increase enforcement actions under the Immigration Reform and Control Act (IRCA), which includes criminal and civil penalties for employers who knowingly employ unauthorized workers; the new California law seeks to protect foreign workers from unfair immigration-related practices, potentially causing problems for employers who must comply with federal and state laws. 

Worksite Access:

Unless required by Federal law, the Immigrant Worker Protection Act prohibits California employers from allowing immigration enforcement agents to enter any nonpublic areas of a workplace without a judicial warrant.  However, an employer may permit an agent to enter a nonpublic area (where employees are not present) for purposes of verifying whether the agent has a judicial warrant.

The law does not define “immigration enforcement agents” but presumably includes Immigration and Customs Enforcement (ICE) agents, Fraud Detection and National Security (FDNS) inspectors, and Department of Labor (DOL) auditors, as well as officers from other federal agencies who conduct enforcement actions that fall under the new law.  Employer site visits are often conducted by U.S. Citizenship and Immigration Services (USCIS) Officers who may also fall under the purview of the new law, potentially creating problems for employers who may face USCIS visa petition denials or revocations for foreign workers if they block site visits under the new law.

Access to Employee Records:

Unless required by Federal law, the new law prohibits employers from allowing immigration enforcement agents to access, review, or obtain their employee records without a subpoena or judicial warrant.  This includes Social Security numbers, payroll information and other personnel records.

The only exception to this requirement is for I-9 Employment Eligibility Verification forms and other documents for which a Notice of Inspection has already been provided to the employer.

Notice to Employees:

Except as otherwise required by Federal law, the Immigrant Worker Protection Act requires employers (within 72 hours of receiving a Notice of Inspection for I-9 Forms or other employment records by an immigration agency) to provide a notice to each current employee and their authorized representative, if one exists.  An “employee’s authorized representative” would be an exclusive collective bargaining representative.  Further, the Notice should be posted in the language the employer normally uses to communicate employment-related information to its employees.  The notice must include:

• The name of the immigration agency conducting the inspection;
• The date that the employer received notice of the inspection;
• The nature of the inspection to the extent known; and
• A copy of the Notice of Inspection for the inspection to be conducted.

Except as otherwise required by Federal law, within 72 hours of receiving the notice that provides the results of the inspection, an employer must provide each current “affected employee” and their authorized representative, if any, a copy of the written results and the obligations of the employer and the affected employee arising from the results of the inspection.  An “affected employee” is an employee who may lack work authorization or an employee whose work authorization documents have been identified as deficient.  The employer must deliver this notice by hand at the workplace, if possible; or, if hand delivery is not possible, by mail and email to the employee and to their authorized representative.  The notice must contain the following information:

• A description of any and all deficiencies or other items identified in the written immigration inspection results notice related to the affected employee;
• The time period for correcting any potential deficiencies identified by the immigration agency;
• The time and date of any meeting with the employer to correct any identified deficiencies; and
• Notice that the employee has the right to representation during any meeting scheduled with the employer.

Reverifying Employment Eligibility:

The new law prohibits employers, unless otherwise required by Federal law, from reverifying employment eligibility of a current employee at a time or manner not required by federal law.  This may create problems for employers conducting voluntary internal audits in the course of business, who may now risk violating the law.  Also, the new law states that nothing in its provisions should restrict an employer’s compliance with the memorandum of understanding governing the use of the federal E-Verify system.

Penalties:

A violation of the reverification provision could lead to a civil penalty of up to $10,000.

Failure to satisfy any of the other provisions could result in civil penalties ranging from $2,000 up to $5,000 for a first violation, and from $5,000 up to $10,000 for each subsequent violation.

Ask MSK:

What can California employers do to prepare for the Immigrant Worker Protection Act?

To prepare for the new law, we suggest that California employers do the following:

• Train front of the house employees to immediately call for a supervisor if immigration inspectors come to the facility, or ask for court warrants and/or subpoenas if a supervisor is not available;
• Train Human Resources or other employees who handle immigration-related matters to comply with the new posting and notice requirements that are triggered when a Notice of Inspection is received, as well as the post-inspection notice requirements that are triggered once the inspection is completed; and
• Train Human Resources employees on when it is appropriate to reverify employees’ work authorization status and ensure that they do not do so unless required by Federal Law.

Employers should contact their immigration attorney to create a plan of action for use when an immigration enforcement agent visits the work site; as well as evaluate on a case-by-case basis any necessary internal audits which could violate the re-verification provisions of the new law.