Modesto, Calif., (February 1, 2018) – This memorandum provides advice and guidance concerning the implementation of AB 450, and its integration under federal immigration laws. To understand the significance of the new law, and the public threats being made by state officials against employers, employers must understand the process for enforcement of immigration laws. There are two primary methods used by ICE for worksite enforcement, raids and audits.
Raids: In a raid, ICE will typically appear with a search warrant in hand, and a significant law enforcement presence to make arrests. The employer will have an opportunity to verify and receive a copy of the warrant, and is entitled to an inventory of any records or evidence seized, but the employer cannot interfere with execution of the warrant.
I-9 Audit: An audit is typically conducted by an ICE employee who has only civil authority, and typically lacks the authority to issue warrants or make arrests. These audits are conducted under federal regulations and are limited to I-9s and their supporting documents. ICE must provide a 3 day written notice, referred to as a “Notice of Inspection,” and will conduct the audit 72 hours later. As will be discussed below, AB 450 is largely a piece of political grandstanding, and for the most part should not present a significant threat to employers who understand its provisions.
Effective January 1, 2018, Gov. Brown signed AB 450 which does the following:
- Requires employers to ask immigration agents for a warrant before granting access to a worksite.
Legal Guidance: Remember, immigration agents almost never show up and demand broad access without a warrant. When they do so, they will likely have a justification such as hot pursuit or some other emergency circumstance that eliminates the need for a warrant, and employer consent is a non-issue. The odds are very low that an employer will ever face the threat of a warrantless search by ICE that relies on employer consent for access. If such a circumstance arises, the employer should express a desire to cooperate, but a need to avoid fines under state law, and should ask the agent to obtain a subpoena or warrant.
- Prevents employers from voluntarily sharing confidential employee information without a subpoena.
Legal Guidance: Under existing law, employers must generally avoid sharing confidential information without a subpoena. Typically, ICE does not need subpoenas, as the documents they ordinarily seek are I-9s, which they are entitled to audit. If ICE has a broader document request, express a desire to cooperate, explain the state law, and ask them to provide a subpoena.
- Requires employers to notify their workers before a federal audit of employee records.
Legal Guidance: This is the most dangerous part of the law, because it can trigger employee flight that damages the business, and can needlessly frighten employees. This requirement will be discussed in further detail below.
- Gives the attorney general and labor commissioner exclusive authority to enforce new provisions of state labor laws.
- Prohibits employers from re-verifying information on employment verification forms, unless compelled to by federal law.
Legal Guidance: Employers can only re-verify under limited circumstances already, and federal law outlines the circumstances in which they can do so.
- At this time, only the state can enforce these laws, and the bill does not authorize private lawsuits.
AB 450 implements these prohibitions as follows:
Sec on 7285.1 is added to the Government Code:
- Unless required by federal law, an employer cannot voluntarily allow immigration to enter any nonpublic area of the workplace. This does not apply if immigration provides a judicial warrant or if they enter without consent.
- If section (a) above is violated by employer or agent, employer will be subject to civil penalty of $2,000 to $5,000 for its first offense. Subsequent viola on fines can be between $5k and $10k.
- Employer can talk to immigration in a nonpublic area, where employees are not present and no consent is given for immigration to search nonpublic area, for the purpose of verifying whether or not enforcement agent has a judicial warrant.
Legal Guidance: As discussed above, it is exceedingly rare for ICE depend upon employer consent to gain worksite access. However, a constructive dialogue with the ICE agent will always be the best approach. Employers should be ready to express the desire to cooperate, but the need to avoid state fines, and should avoid antagonizing ICE agents.
Sec on 7285.2 is added to the Government Code:
- Except as required by federal law, and except for where Notice of Inspection has been given to the employer for eligibility verification, Employer cannot provide voluntary consent for immigration to have access to employee records without a subpoena or judicial warrant. Does not prohibit employer from challenging validity of subpoena or warrant in court.
Legal Guidance: Again, it is rare for ICE to request documents without a subpoena or a Notice of Inspection. However, should such circumstances arise, express the desire to cooperate but ask the agency to serve a subpoena.
- Does not apply to I-9 verification forms and other documents for which Notice of Inspection has been provided to employer.
Legal Guidance: I-9 audits remain the most likely law enforcement activity most employers will encounter, and they can only be conducted pursuant to a Notice of Inspection.
- If voluntary consent by employer is given, the employer will be subject to civil penalty of $2,000 to $5,000 for its first offense. Subsequent violation fines can be between $5k and $10k. Again, this will not apply if the federal agency takes access over the employer’s objection.
Sec on 7285.3 is added to the Gov’t Code: Employers may still enroll in E-Verify.
Sec on 90.2 is added to the Labor Code:
- Notice of Inspection: Except as otherwise required by federal law, within 72 hours of receipt of inspection notice, the employer must provide a written notice to each current employee of any I-9 verification or employment records inspections (can be posted where employer normally posts employment-related notices to employees). Notices must contain the following: Name of immigration agency; Date employer received notice of inspection; Nature of the inspection; and Copy of the Notice of Inspection (A. On or before 7/01/2018, the Labor Commissioner will have a template posting for employers available on its website. B. Upon reasonable request, employer must give affected employee copy of the Notice of Inspection.)
Legal Guidance: This notice requirement is problematic, as it may create fear and cause loss of employees who cannot be detained or arrested by the auditor. Historically, I-9 audits have not resulted in wholesale deportation of employees. Employers facing the audit must make the posting or face penalties, and there appears to be no basis to avoid it. However, employees often do not look at the workplace postings, which may help minimize the impact. Concerned employers can word the notice to advise employees that it has valid I-9s on all of them, and is confident that there are not violations of immigration law. But realistically, employers should expect the notice to cost them employees.
- Inspection Results: Except as otherwise required by federal law, within 72 hours of receipt of inspection results, employer must provide an individualized written notice to each affected employee (an employee identified by immigration who may lack work authorization or whose authorization documents may have deficiencies) containing the individualized results and any employer/employee obligations arising from said results. Individualized Employee Notices must contain the following:
- List deficiencies or other items identified in the results related to the employee; – Time period for corrections;
- Time/date of any meeting with the employer to correct deficiencies;
- Notice to employee re: right to representation during meeting with employer.
Legal Guidance: This is a largely meaningless requirement. If ICE conducts an I-9 audit and finds one or more workers to be undocumented, they will order that the employer immediately terminate the employment. Written notice will be required, but it seems unlikely that many scenarios will arise that will enable the worker to resolve the problem, at least in the short term.
- There is a civil penalty of $2,000 to $5,000 for its first offense. Subsequent violation fines can be between $5k and $10k. Doesn’t apply if immigration directs or requests that no notice be provided to an employee.
Sec on 1019.2 is added to the Labor Code:
- Employer shall not reverify employment eligibility of a current employee, except when required under federal law.
- Penalty for violations are up to $10,000.
CONCLUSION: The most critical aspect of immigration compliance strategies for employers remains the I-9 form. Especially in the current environment, the employer’s best opportunity to avoid significant penalties, including criminal consequences, will be ensured that it properly completes the I-9 for each and every employee. Even if it is discovered that an employee is undocumented, an employer whose I-9 practices are strong can avoid liability. Employers should train all personnel involved in hiring on I-9 compliance, and should conduct internal I-9 audits as soon as possible to ensure compliance.
By Anthony Raimondo, Esq., Industry Expert