By: Dina J. Sakita, Esq.
California’s Immigrant Worker Protection Act (AB 450) went into effect on January 1, 2018, which is designed to protect workers in the event of a workplace enforcement action. AB 450 imposes several obligations and restrictions on the part of an employer related to worksite and records access, notice to employees, and reverification of I-9 records. It also imposes many challenges on employers in trying to understand their obligations under both federal and state law.
In summary, AB 450 prohibits employers from allowing immigration enforcement agents to enter nonpublic areas without a judicial warrant, or to access, obtain or review employee records without a subpoena or judicial warrant; requires employers to notify employees before and after certain I-9 inspections take place; and prohibits employers from improperly reverifying employees’ employment eligibility.
The challenges presented to employers:
Who is an Immigration Enforcement Agent?
The new law does not define the term “immigration enforcement agent”. In the event of an enforcement action, employers should always request identification and take notes concerning the identity of the federal agent and the agency from which he/she is associated. Given the various roles assigned to immigration authorities, it is reasonable to conclude that the term “immigration enforcement agent” refers to Federal Agents of the U.S. Immigrations and Customs Enforcement (ICE), which is the immigration enforcement branch of the U.S. Department of Homeland Security (DHS). It is unclear whether the term applies to other branches of the DHS.
What is a Judicial Warrant Required to Access Nonpublic Areas of the Worksite?
If an employer is requested access to nonpublic areas of a worksite, AB 450 prohibits the employer from providing access unless the federal agent presents a warrant signed by a Judge. This is distinguishable from an ‘administrative warrant’ for the arrest of a particular individual, which is signed by a DHS Immigration Officer and does not satisfy the requirement for a ‘judicial warrant’.
Access to Employee Records
If a federal agent requests access to employee records, AB 450 also prohibits the employer from providing access to those records unless the agent presents a subpoena or judicial warrant. In this context, a subpoena need not be signed by a judge, and may be signed by an authorized immigration officer.
The requirement for a subpoena or judicial warrant does not apply where the federal agent seeks to obtain I-9 eligibility verification forms through the service of a proper Notice of Inspection (NOI). However, in the event of a NOI, certain employer obligations are triggered under AB 450, which include the following:
The employer must notify its employees and their labor union representative, where applicable, of the inspection within 72 hours of receiving the notice. The Notice requires: the name of the immigration agency conducting the inspection; the date the notice was received; the nature of the inspection; and a copy of the NOI. California’s Labor Commission is developing a posting notice, which is expected to be available by July 1, 2018.
After an immigration inspection, employers must provide a copy of the government’s inspection results to “affected employees” and their union representatives within 72 hours of receipt of the results. An “affected employee” is defined as an employee identified by the inspection results as one who may lack work authorization, or whose employment eligibility documentation may have deficiencies.
Employers should hand-deliver (if possible) an individualized written notice to each affected employee and their union representative (if any), within 72 hours of receiving the inspection results. The written notice must contain the following: A description of the error(s) or deficiencies that the government is alleging with regard to the employee; how much time the employee has to correct the error or deficiencies; when and where the employee can meet with the employer to correct any identified deficiencies; and the employee’s right to representation during the meeting.
Employer Limitations on Reverifying Employment Eligibility on Form I-9
AB 450 prohibits employers from reverifying the employment eligibility of current employees in a manner not required by federal law. Employers are required to conduct reverification before an employee’s existing work authorization expires.
This alert is for general informational purposes only and should not be construed as legal advice. For legal counsel on this matter, please contact the law firm Madison Piper PC.