California DIR Reminds Employers of State Law Nuances Impacting Federal Immigration Enforcement Actions

Quick Hits

• California law requires an employer to notify its current employees of a federal immigration agency Form I-9 audit, and to provide results of such inspections to affected employees.
• California law prohibits employers from providing “voluntary consent” to federal immigration agents to access nonpublic areas or employment records without a judicial warrant or subpoena.

Assembly Bill (AB) 450, known as the Immigrant Worker Protection Act, took effect on January 1, 2018, and sets forth requirements for California employers in handling U.S. Department of Homeland Security (DHS) worksite enforcement actions, which include requests to access an employer’s worksites and/or employment records, as well as Form I-9 audits.

Form I-9 Audit

Notice of Inspection

California Labor Code section 90.2 requires employers to provide written notice to current employees when they receive a Notice of Inspection or Form I-9 audit from federal immigration authorities. The notice must be provided in writing and delivered to current employees within seventy-two hours of receiving the Notice of Inspection. The notice must be delivered in a manner to reach all current employees and, if applicable, the employees’ collective bargaining representative. Employers must also provide a copy of the Notice of Inspection to an employee upon request.

The California Department of Justice and the DIR jointly published a Frequently Asked Questions (FAQs) document on the Immigrant Worker Protection Act. The FAQs provide a template posting for employers to use. The required notice to employees must contain the name of the immigration agency, the date the employer received the I-9 audit, a description of the federal agency inspection, and a copy of the Notice of Inspection. It is important to note that the FAQs warn employers that a Notice of Inspection is often “delivered during a visit from government agents” but also could be delivered without a visit. The seventy-two-hour period is triggered by the employer’s receipt of the Notice of Inspection, regardless of the delivery method. It is also important to note that the FAQs clarify that the law is not violated if an employer does not provide notice to an employee “at the express and specific request of the federal government.”

Notice of Immigration Agency I-9 Audit Results

Section 90.2 also requires employers to provide to “each current affected employee,” and to the employee’s exclusive bargaining representative (if applicable), the results of the I-9 audit or inspection of records as well as the obligations of the employer and the impacted employee arising from the federal immigration agency inspection. An “affected employee” is defined as an employee who is identified in the immigration agency inspection report as potentially lacking work authorization or whose work authorization documents have been flagged for potential deficiencies.

This notice must be delivered “by hand at the workplace if possible” and if not possible, by both mail and email. This notice must be delivered within seventy-two hours of the employer’s receipt of the results of the federal immigration agency inspection. The notice must contain: (1) “[a] description of any and all deficiencies” identified, (2) the “time period for correcting any potential deficiencies,” (3) the “time and date of any meeting with the employer to correct any identified deficiencies,” and (4) “[n]otice that the employee has a right to representation during any meeting scheduled with the employer.”

Penalties

Employers that fail to provide required notices may be subject to civil penalties of $2,000 to $5,000 for a first violation, and $5,000 to $10,000 for each subsequent violation. Section 90.2 expressly states that the requirements should not be read in a way to “restrict or limit an employer’s compliance with any memorandum of understanding governing use of the federal E-Verify system.”

Access to Worksites or Employee Records

Government Code Section 7285.1 prohibits employers from providing “voluntary consent” to immigration agents to access “any nonpublic areas of a place of labor” unless presented with a judicial warrant. This section provides that employers may take immigration agents to a nonpublic area where there are no employees “for the purpose of verifying whether the immigration enforcement agent has a judicial warrant, provided no consent to search nonpublic areas is given in the process.”

Similarly, Government Code Section 7285.2 prohibits employers from providing “voluntary consent” to immigration agents that would allow them to “access, review or obtain the employer’s employee records without a subpoena or judicial warrant.”

Similar to the notice requirements for I-9 audits, employers may face civil penalties of $2,000 to $5,000 for a first violation, and $5,000 to $10,000 for each subsequent violation of these code sections.

Next Steps

The DIR reminder and guidance in the FAQs come amid increased federal immigration enforcement under the Trump administration. It is important that California employers understand the state law in this space, as it imposes additional requirements in handling immigration inspections, as well as significant fines for violations.

Ogletree Deakins will continue to monitor developments and will provide updates on the California and Immigration blogs as additional information becomes available.

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