California Employers Are Thrown in the Middle of the National Debate Over Immigration Enforcement

A growing tension between the hardline stance of the Trump administration and the State of California on immigration issues has landed in the laps of California employers. Governor Jerry Brown recently signed Assembly Bill 450 (AB 450), which restricts California employers’ interactions with federal Immigration and Customs Enforcement (ICE) agents. The law, which takes effect on January 1, 2018, is part of a broader effort to make California a “sanctuary state” for immigrants, which includes other new laws restricting local law enforcement from cooperating with federal immigration authorities.

Background

Under current federal immigration law, when ICE agents show up at a worksite to engage in enforcement activity, an employer could cooperate and allow the ICE agents access to nonpublic portions of the worksite voluntarily or it could require a judicial warrant. 

Summary of New Law

California employers are now prohibited from cooperating with ICE agents and allowing them on the premises without a judicial warrant. This requirement places employers in an adversarial posture with ICE agents when cooperation is often the best approach to quickly resolve a governmental investigation without the imposition of fines.

Here are other key provisions of AB 450:

• Employers may not provide voluntary consent for an ICE agent to review or obtain employee records without a subpoena or judicial warrant. However, this does not apply to I-9 forms and other immigration-related documents for which a notice of inspection has been provided to the employer.
• If immigration authorities provide notice of inspection of I-9 forms or other immigration-related documents, employers must provide written notice to employees and their labor unions within 72 hours of receiving a notice of inspection. The written notice must include the name of the agency, the date the notice was received, and a copy of the inspection notice.
• Employees may request the employer to provide a copy of any written results of an I-9 or other immigration-related document inspection. Employers must also provide any employee who was identified as having an immigration-related deficiency with a description of the deficiency and the time/date of when the employer will meet with the employee to correct the deficiency, and notification that the employee has a right to representation during that meeting.

California Employers Should…

…be very cautious! It is possible that there will be litigation between the federal government and the State of California over the reach of AB 450 and the employer, unfortunately, will be caught in the middle. Thomas Homan, the Acting Director of Immigration and Customs Enforcement, recently announced that agency enforcement actions would triple or quadruple current levels in the next few years. This, coupled with California’s “Sanctuary State” resistance to the Trump administration, could lead to California employers being targeted for inspections and raids.

…revisit their current immigration practices, including conducting an internal employment authorization audit to ensure I-9 forms, and other immigration-related documentation, are in order.

…train human resources personnel on the requirements of AB 450, including how to deal with the difficult task of refusing entry to ICE agents who appear without a warrant or subpoena and characterize refusal to allow them access to the premises and records as a lack of cooperation.

Also, because administrative subpoenas can be confused with judicial warrants and employee notices will have to be issued in a short timeframe, it is advisable to involve a member of Goodwin’s California Labor & Employment team if an inspection is noticed or authorities appear at a workplace.