On September 15, 2021, a divided panel of the Ninth Circuit Court of Appeals decided…
Voluntary Compliance with Federal Immigration Laws is Unlawful in California
California employers are caught between a rock and a hard place. By this, I refer to the often conflicting compliance requirements imposed by federal immigration laws and California “sanctuary state” legislation enacted into law on January 1, 2018. This legislation, in essence, restricts California employers from voluntarily complying with federal immigration authorities, specifically including U.S. Immigration and Customs Enforcement (I.C.E.) agents.
Paradoxically, it imposes new notice requirements as well as numerous statutory penalties for non-compliance with California law which, taken together, in some respects prohibit voluntary (i.e., non-compulsory) compliance with federal law.
Access to Workplace
The new statute, AB 450, prevents employers and their agents, “except as otherwise required by federal law,” from voluntarily permitting immigration enforcement agents access to non-public areas of a workplace. Employers may allow access, instead, only if enforcement agents produce a legally-enforceable search warrant.
However, employers may allow immigration officers access to a non-public area, provided no employees are present, for the limited purpose of verifying whether the agents have an enforceable judicial warrant, and on condition that the employer does not give consent to search non-public areas in the process.
Access to Employment Information
Similarly, AB 450 prohibits employers and their agents from consenting to allow immigration enforcement agents access to, or the ability to review or obtain employee records without a subpoena or legally-enforceable judicial warrant. Employers may challenge the validity of a subpoena or search warrant in federal district court.
The new law does not apply to I-9 Employment Eligibility Verification forms, provided the employer has received a notice of inspection. AB 450 requires employers to provide, within 72 hours of receiving a notice of inspection of I-9 or other employment records by an immigration agency, notice of the impending inspection in the language the employer normally uses to communicate employment-related information to employees.
The California Labor Commissioner can recover civil penalties ranging from $2,000 to $5,000 for an initial violation of these requirements, and from $5,000 to $10,000 for each subsequent violation.
In order for an inspection to proceed, the notice must include 1) the name of the immigration agency conducting the inspection, 2) the date the employer received notice, 3) the nature of the inspection and 4) a copy of the Notice of Inspection of I-9 Employment Eligibility Verification Forms the employer received.
Further, within 72 hours of receiving notice of the results of the I-9 forms or employment records inspection, the employer must provide to the affected employee and his/her authorized representative written notice of the employer’s and affected employee’s obligations arising from the results of the inspection. This notice must pertain specifically to the affected employee and be hand-delivered at the workplace, if possible or, if this is not possible, sent by mail and email, if the employer knows the employee’s email address. It must also be provided to the employee’s authorized representative.
The notice must include 1) a description of all deficiencies the written immigration inspection results notice identifies that relate to the affected employee, 2) the time period for correcting any alleged deficiencies, 3) the date and time of any meetings with the employer to correct the deficiencies and 4) the employee’s right to be represented at such meetings.
For purposes of this discussion, an “affected employee” is defined to mean an employee identified during the immigration agency inspection as either lacking work authorization or whose work authorization documents have been identified as deficient. An authorized representative is defined to mean an exclusive collective bargaining representative.
Employers who violate the notice requirements are subject to civil penalties payable to the Labor Commissioner ranging from $2,000 to $5,000 for the first violation, and from $5,000 to $10,000 for each subsequent violation.
Jay G. Putnam is a Petaluma labor lawyer who has specialized in representing California employers for over three decades. His practice is devoted to preventing lawsuits against his clients, without sacrificing workplace authority or management prerogatives.
While no one can guarantee a future free of lawsuits, Putnam has compiled a remarkable record of success: Not one employer-client has been sued in 36 years with his system of precautions in place.
For those clients who have arrived with pending lawsuits, Putnam has established an excellent track record of success as well.
You are invited to visit Mr. Putnam’s website, where you will find in-depth discussion of the most common mistakes made by California employers, and how to avoid them. http://www.jaygputnam.com/newsletter/