ICE Raids and What California Employers Need to Know About New Laws

Jan 16 2018 - Form I-9, Hiring - Gail Cecchettini Whaley

ICE Audits are complicated in California.

ICE Audits are complicated in California.

Last week, ICE raided nearly 100 7-Eleven stores across the country — from Los Angeles to New York — arresting over 21 workers and demanding paperwork from employers. ICE has indicated that it will continue to crackdown on employers who have undocumented workers on the books.

“Today’s actions send a strong message to U.S. businesses that hire and employ an illegal work force: ICE will enforce the law, and if you are found to be breaking the law, you will be held accountable,” said Thomas D. Homan, the acting director of the agency, in a statement.

Last year, Homan stated that he plans to increase worksite enforcement by four to five times: “We’re taking worksite enforcement very hard this year. We’ve already increased the number of inspections and worksite operations — you’re going to see that significantly increase this next fiscal year.”

California Employers and AB 450

California employers have particular reason to be concerned with ICE raids at the workplace.

Effective January 1, 2018, the Immigrant Worker Protection Act (AB 450) provides California workers with protection from immigration enforcement while on the job. Employers will need to comply with strict rules limiting when ICE can be given access to the worksite or employee records. Employers will also have to follow new notice obligations. These brand new requirements apply to all employers, regardless of size.

California employers can no longer voluntarily allow ICE to enter nonpublic work areas or to access company records. Instead, ICE must present legal documentation in the form of a warrant or subpoena before you can allow access. This prohibition does not apply to Form I-9 or other documents for which a Notice of Inspection was provided to the employer.

Employers must follow specific requirements related to Form I-9 inspections. For example, within 72 hours of receiving a Notice of Inspection, California employers must post a notice to all current employees informing them of any federal immigration agency’s inspections of Forms I-9 or other employment records.

Employers also have obligations once the inspection is over. Within 72 hours of receiving the inspection results, employers must provide each “affected employee” a copy of the results and a written notice of the employer’s and employee’s obligations arising from the inspection. An “affected employee” is one identified by the inspection results as potentially lacking work authorization or having document deficiencies.

Unions also have the right to receive notices.

Be Prepared

If you aren’t prepared, missteps can occur, leading to various fines for violation of the law. Penalties for violating the new state law can be up to $10,000 per violation, depending on whether it’s a first or subsequent offense. At the same time, federal penalties for Form I-9 violations can range from a couple hundred dollars to over $20,000 dollars

California employers need to ensure that supervisors and any employees who are likely to interact with authorities arriving at the worksite are aware of the limitations on ICE access and that they cannot voluntarily grant access without particular documentation in place. Consider designating a trained point-person(s) for front-line staff to contact if immigration agents arrive at your worksite. These individuals should be trained to ask for a warrant or subpoena.

California employers also need to create and document processes to meet all pre- and post-inspection notice requirements. Since the 72-hour timeframes are short, standardized posting and notice processes will help you meet your compliance obligations.

Until an official template is developed by the Labor Commissioner, CalChamber has developed a template for CalChamber members to use to meet the posting requirement — Notice to Employees: Government Inspection of Employment Eligibility Records and Notice to Employees: Government Inspection of Employment Eligibility Records – Spanish.

Compliance in this area is going to be tough given the potential conflicts or confusion between an employer’s obligations under federal law and these new California requirements. Consult a labor or immigration attorney with any questions or concerns.

Gail Cecchettini Whaley, CalChamber Senior Employment Law Counsel 

Unsure about all the new 2018 employment laws? Download the free An Overview of New 2018 Laws Affecting California Employers (members can download it here). CalChamber members can also read more on Worksite Immigration Enforcement and Protections in the HR Library. Not a member? See how HRCalifornia can help you.

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