California Employers Must Comply With Additional Obligations to Protect Immigrant Employees

Effective January 1, 2018, public and private employers in the state of California will be required to provide employees with prior notice of any federal immigration enforcement action, among other obligations.

On October 5, 2017, California Governor Jerry Brown of California approved AB-450, which imposes the following requirements on all California employers:

• Employers shall not provide voluntary consent to an immigration enforcement agent to enter any nonpublic areas of a workplace except if the immigration enforcement agent provides a judicial warrant.
• Employers shall not provide voluntary consent to an immigration enforcement agent to access, review or obtain employee records without a subpoena or judicial warrant. This does not apply, however, to Forms I-9 and other documents for which a notice of inspection has been provided to the employer.
• Employers are required to provide written notice to all current employees of any inspections of Forms I-9 or other employment records conducted by an immigration agency within 72 hours of receiving a notice of inspection. The written notice must include the name of the agency, the date the employer received the notice of inspection, the nature of inspection (if known), and a copy of the notice of inspection.
• Upon reasonable request, employers shall provide a copy of the written notice of inspection from the immigration agency that provides the results of an I-9 inspection or other employment records within 72 hours of receiving such notice. Employers should also provide to each affected employee written notice of the obligations of the employer and the affected employee arising from the result of the I-9 inspection relating to the employee only. The notice should contain a description of any and all deficiencies in the written immigration inspection results notice, the time period for correcting any deficiencies, the time and date of any meeting with the employer to correct any deficiencies, and notification that the employee has the right to representation during any scheduled meeting.
• Employers shall not re-verify the employment eligibility of a current employee not required under the law. However, nothing in the law shall be construed to restrict or limit an employer’s compliance with a memorandum of understanding governing the use of the federal E-Verify system.

Any notice provided to an employee under this law must also be provided to the employee’s authorized representative (if applicable), which here means an exclusive collective bargaining representative.

There is no private right of enforcement under this new law. Exclusive authority is granted to the Labor Commissioner or the Attorney General to bring a civil action.

In addition to California’s new requirements, employers should be aware of recent statements from Immigration and Customs Enforcement (ICE) regarding the increase of worksite enforcement. Acting Director Thomas Homan announced that agency enforcement actions would triple or quadruple current levels in the next few years.

California employers in particular should focus on their current immigration compliance practices and prepare to build in processes to reflect the new law’s obligations. Overall, worksite compliance actions are bound to increase; employers should invest the time and effort now to avoid significant fines and other penalties under federal and applicable state laws.