Update: These provisions are the subject of litigation. As of April 2019, the State of California is enjoined from enforcing AB450 provisions. The only exception to the court’s injunction is the notice provision described below.
California Assembly Bill No. 450 (AB 450) regarding California employers’ obligations when subject to federal immigration worksite enforcement actions was signed by Governor Brown on October 5, 2017, and took effect on January 1, 2018. As part of a group of immigration-related bills recently signed into law, AB 450 is hailed by advocates as solidifying California’s status as a Sanctuary State. The law introduces several requirements applicable to public and private employers in California. How the California Labor Commissioner or California Attorney General will enforce the law is still an open question, given that federal law ordinarily preempts state law in the area of immigration, and because there is uncertainty surrounding which federal immigration enforcement agents must be refused entrance or documents under the new California law. Below we detail a few of the new requirements for employers:
PREVENTION OF ENTRY: The law prohibits California employers from providing “voluntary consent to an immigration enforcement agent to enter any nonpublic areas of a place of labor . . . [without] a judicial warrant.”
It’s clear that the immigration “police” or ICE (Immigration and Customs Enforcement, part of the Department of Homeland Security) would be considered enforcement agents and should therefore not be allowed into nonpublic places of labor without a warrant. The California Attorney General has been very vocal that it will prosecute employers that assist ICE. It remains to be seen if an employer that allows entry to other types of federal employees doing immigration-related tasks (e.g., USCIS’s Fraud Detection & National Security employees, or U.S. Department of Labor Wage & Hour Inspectors) will be subject to liability. Violations of this section can run from $2,000 to $10,000 in money penalties.
PREVENTION OF DOCUMENT ACCESS OR INSPECTION: The law prohibits California employers from providing “voluntary consent to an immigration enforcement agent to access, review, or obtain the employer’s employee records without a subpoena or a judicial warrant.”
Similar to the prevention-of-entry rule above, the question here is which federal government employees are considered immigration enforcement agents. There is a carve-out exception for allowing inspection of I-9 Employment Eligibility Verification forms. It’s not clear if allowing inspection of other types of records, for example, H-1B Public Access Files, would be considered a violation under California law; certainly failing to make them available under federal law would be an issue. Violations of this section can incur penalties of $2,000 to $10,000.
NOTICE TO EMPLOYEES: The law requires a California employer to provide notice to employees of I-9 Employment Eligibility Verification Inspections.
Unlike the provisions above, the mandate in this section is clear. First, employers must notify all employees of an I-9 inspection by posting a notice within 72 hours of receiving a notice of inspection. The notice must contain the following:
The name of the immigration agency conducting the inspections of I-9 Employment Eligibility Verification forms or other employment records.
The date that the employer received notice of the inspection.
The nature of the inspection to the extent known.
A copy of the Notice of Inspection of I-9 Employment Eligibility Verification forms for the inspection to be conducted.
A template for such notice will be developed by the California Labor Commissioner. Second, any affected employee (defined as an employee identified in the federal inspection results as possibly lacking work authorization or whose documents may have deficiencies) must be provided with any federal government notice of the inspection results as they pertain to that employee. If the employee is represented by a union, the notice of results must also be provided to the authorized collective bargaining representative. Penalties for violation of these California notice requirements range from $2,000 to $10,000.
REVERIFICATION: A California employer may not “reverify the employment eligibility of a current employee at a time or in a manner not required by [law].”
Already prohibited by federal law, this provision reaffirms that employers should not be re-verifying employees’ employment eligibility unless required by law. The provision calls for penalties of up to $10,000 for a single violation.
© Jewell Stewart & Pratt PC 2018