New California Law Restricts Employers From Giving Access to Immigration Agents
Authors: Christopher W. Olmsted (San Diego), Hera S. Arsen, Ph.D. (Torrance)
Published Date: October 24, 2017
On October 5, 2017, Governor Brown signed Assembly Bill (AB) 450, which will prohibit employers, under some circumstances, from providing consent to immigration agents to enter certain areas of the workplace. The law will go into effect on January 1, 2018.
The new law will restrict employers and others acting on an employer’s behalf, “from providing voluntary consent to an immigration enforcement agent to enter nonpublic areas of a place of labor unless the agent provides a judicial warrant.”
Similarly, the law prohibits employers from voluntarily giving consent to an “agent to access, review, or obtain the employer’s employee records without a subpoena or court order.” Both prohibitions are subject to exceptions.
The law also prohibits an employer from reverifying an employee’s eligibility to work unless specifically required by federal statutory law.
The law does not prohibit employers from inviting immigration officers into nonpublic areas, where no employees are present, in order to verify the existence of a warrant.
The restriction on access to and review of employer records does not apply to I-9 Employment Eligibility Verification forms and other documents for which a notice of inspection has been provided to the employer.
The law will also require employers to notify each current employee, within 72 hours of receiving notice of an inspection, than an immigration agency will be inspecting I-9 Employment Eligibility Verification forms or other records. Employers must post the notice “in the language the employer normally uses to communicate employment-related information to the employee.”
Employers must include the following information in the notice:
(A) The name of the immigration agency conducting the inspections of I-9 Employment Eligibility Verification forms or other employment records.
(B) The date that the employer received notice of the inspection.
(C) The nature of the inspection to the extent known.
(D) A copy of the Notice of Inspection of I-9 Employment Eligibility Verification forms for the inspection to be conducted.
Enforcement & Penalties
The law gives the state labor commissioner or the attorney general the exclusive authority to enforce its provisions.
Nonpublic areas and Employer Records. The new law imposes penalties of $2,000–5,000 for a first violation and $5,000–10,000 for each subsequent violation of the prohibitions against consenting to enter nonpublic areas and permitting agents access to employment records.
Reverification. Employers that violate the prohibition on reverification are subject to a penalty of up to $10,000.
Notice. Employers that fail to provide the required notices are subject to penalties of $2,000–5,000 for a first violation and $5,000–10,000 for each subsequent violation. Employers that fail “to provide notice to an employee at the express and specific direction or request of the federal government” are not subject to a penalty.
Christopher Olmsted is a shareholder in the firm's San Diego office. Mr. Olmsted helps businesses avoid employment-related legal claims by providing California employment law compliance advice. He also defends employers in a variety of litigation matters. Mr. Olmsted's employment law compliance and litigation experience includes: California FEHA and Title VII discrimination, harassment and retaliation claims; wrongful termination claims; wage and hour compliance and defense of claims and labor...
Hera S. Arsen, J.D., Ph.D. is Senior Marketing Counsel overseeing the firm's print and online legal publications and content. Hera, who joined Ogletree Deakins in 2003, is directly responsible for writing and editing the firm's national legal content, including coverage of federal agencies and the Supreme Court of the United States. She also oversees the Ogletree Deakins blog, which covers the latest legal news from over 20 practice-areas and jurisdictions. As leader of the firm's blog, Hera...