On October 5, 2017, California Governor Jerry Brown signed into law Assembly Bill 450 (“AB 450”), imposing new requirements for public and private employers regarding immigration worksite enforcement actions by Immigration and Customs Enforcement (“ICE”).1
Generally, unless otherwise required by federal law, AB 450 prohibits employers from consenting to ICE access to worksites and employee records in certain circumstances; requires employers to provide specified notices to current employees and any authorized representative regarding ICE inspection of employment records; and expressly prohibits employers from re-verifying a current employee’s employment eligibility when not otherwise required by federal law. This new law takes effect on January 1, 2018.
Specifically, under AB 450, an employer can no longer voluntarily consent to an ICE agent (a) entering any nonpublic areas of a worksite if the agent does not have a warrant, and/or (b) accessing, reviewing, or obtaining the employer’s employee records without a subpoena or warrant, with the exception of I-9 Employment Eligibility Verification forms (“I-9s”) and other documents for which a Notice of Inspection has been provided to the employer.
In addition, AB 450 specifically requires employers to notify each current employee (and any applicable union representative) of any inspection of I-9s or other employment records conducted by ICE within 72 hours of receiving notice of the inspection. Such notice must be posted in the language the employer normally uses to communicate employment-related information to the employee, and must contain specific information.
By July 1, 2018, the California Labor Commissioner must develop a template posting that employers may use to provide such notice. If ICE provides notice of its inspection results and such results identify an employee who may lack work authorization or whose work authorization documents have deficiencies, an employer is then required to provide the following to each such “affected employee” (and any applicable union representative) within 72 hours of receipt of such notice: (1) a copy of ICE’s notice of the inspection results; and (2) written notice of the obligations of the employer and that particular affected employee arising from the inspection results.
An employer that violates this law will be subject to significant civil penalties ranging from $2,000 to $5,000 for a first violation (although the penalty for a first-time offense with regard to the re-verifying prohibition could be more or less than this amount) and up to $10,000 for subsequent violations.
- Since the template posting notice will not be available until July 2018, employers that receive a Notice of Inspection from ICE commencing January 1, 2018 – July 1, 2018 should create their own notice. The notice should include the following information: the name of the immigration agency conducting the inspections of I-9s or other employment records; the date the employer received the notice of the inspection; the nature of the inspection to the extent known; and a copy of the Notice of Inspection of I-9 Employment Eligibility Verification forms for the inspection to be conducted.
- AB 450 still requires that employers comply with federal law. Employers in California, however, cannot consent to an ICE officer entering the premises or reviewing employee documentation without a subpoena or warrant, with the exception of I-9s and other documents for which a notice of inspection has been provided.
- For “affected employees” whose work authorizations have deficiencies or who lack work authorization, AB 450 requires that employers provide a copy of the written immigrant agency notice that provides the results of the inspection of employment eligibility verification or other employment records within 72 hours of receiving the notice. This may prove challenging for employers, since after an ICE audit, ICE will issue a Notice of Suspect Documents, listing employees whose documentation does not demonstrate their ability to work. While the Notice of Suspect Documents lists all employees within the same document, ICE does not issue a separate notice for each employee. For privacy reasons, employers cannot provide this information to affected employees. One possible solution is to black out all other information that does not pertain to the employee in question.
- Another issue may arise in the event ICE does not have a warrant, subpoena or notice of inspection. Employers may be wary of prohibiting ICE officers from entering for fear of upsetting them and having them return with an extremely lengthy warrant. In those situations, employers will need to balance the possible fines for noncompliance with the California law against maintaining a positive relationship with the inspecting officer. It is advisable to consult with counsel.
Footnotes: 1 Although the legislative intent appears to place limitations on ICE inspections only, the statute as written is vague and could apply to a wider range of DHS visits.
Compliments of Litter Mendelson , a member of the EACCNY