Court Puts Parts of California’s New Workplace Immigration Law on “ICE”

Continue to notify employees of inspection by immigration agencies.
Continue to notify employees of inspection by immigration agencies.

California’s Immigrant Worker Protection Act (AB 450) provides California workers with certain protections from immigration enforcement while on the job. This law went into effect on January 1, 2018, but the federal Department of Justice challenged the law, plus several other California “sanctuary state” laws.

Yesterday, a federal district judge generally allowed most of California’s sanctuary state laws to survive, but granted a preliminary injunction blocking the state from fining employers who voluntarily grant U.S. Immigration and Customs Enforcement (ICE) access to their worksite or employee records.

Consent to Workplace Access

AB 450 placed various requirements on employers for workplace immigration enforcement actions. Since January 1, employers have been prohibited from voluntarily allowing immigration agents workplace access. Employers could not voluntarily allow a federal immigration enforcement agency to:

  • Enter nonpublic work areas without a warrant; or
  • Access, review or obtain company records without a subpoena or judicial warrant.

Employers who violated these provisions could be fined up to $10,000.

The federal district court issued a preliminary injunction blocking these two provisions from being enforced against private sector employers.

The court held that the Department of Justice is likely to succeed on its federal constitutional challenge to these provisions, writing:

The Court finds that a law which imposes monetary penalties on an employer solely because that employer voluntarily consents to federal immigration enforcement’s entry into nonpublic areas of their place of business or access to their employment records impermissibly discriminates against those who choose to deal with the Federal Government.

For now, private sector employers can’t be fined for voluntarily allowing ICE to enter nonpublic work areas or for voluntarily allowing ICE access to employee records.

Reverification of Employment Eligibility

The court also blocked a portion of AB 450 that limits an employer’s ability to reverify the employment eligibility of current employees in a time or manner not allowed by federal law. But employers should be aware that federal law also places limits on reverification of employment eligibility, and those limits still stand.

Notice Obligations Upheld

Importantly, the court upheld the notice obligations found in AB 450. Under AB 450, employers:

  • Must give notice to employees of any inspection of Forms I-9 or other employer records within 72 hours of receiving a Notice of Inspection.
  • Have notice obligations once the inspection is over. Within 72 hours of receiving the inspection results, employers must give each “affected employee” a copy of the results and a written notice of the employer’s and employee’s obligations arising from the inspection.

The court found that the notice provisions simply provide employees an opportunity to cure deficiencies in their paperwork or eligibility, and that nothing in federal law indicates Congress intended for employees “to be kept in the dark.” Providing the “courtesy” of notice to employees does not thwart federal immigration goals.

In other words, California employers must continue providing both pre- and post-inspection notice to employees.

Stay Tuned

The battle over California sanctuary state laws, including AB 450, is probably not over as this is only a preliminary injunction and future appeals are likely. In the interim, California employers should continue to comply with AB 450’s notice requirements and consult legal counsel with any questions about how to respond to an ICE visit or request for documents.

Gail Cecchettini Whaley, CalChamber Senior Employment Law Counsel

CalChamber has the Notice to Employee: Government Inspection of Employment Eligibility Records in English and Spanish in the HR Library. These forms are available for free. CalChamber members can read more on Reverifying Employment Eligibility in the HR Library. Not a member? See how CalChamber can help you.

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