U.S. Immigration and Customs Enforcement (ICE) issued thousands of Form I-9 audit notices this summer. As ICE worksite enforcement continues to increase, California employers need to keep in mind state requirements when served with a Form I-9 audit notice.
California’s Immigrant Worker Protection Act has been in effect since January 2018 and, even though the Department of Justice challenged the law, California employers have several notice obligations when facing an ICE audit/inspection.
Upon receiving an ICE audit/inspection notice, employers must post a notice to all current employees informing them of the federal inspection of Forms I-9 or other employer records within 72 hours of receiving the notice.
The notice must also be given to the collective bargaining representative, if any. Additionally, employers must provide, upon request, a copy of the federal notice of inspection to the requesting employee.
Once the inspection is over and within 72 hours of receiving the inspection results, employers must provide a copy of the results and a written notice of the employer’s and employee’s obligations arising from the inspections to each “affected employee,” meaning employee identified by the inspection results as potentially lacking work authorization or having deficient documents.
The notice must relate only to the affected employee and, if possible, must be hand delivered at the workplace. If hand delivery is impossible, the notice must be delivered by mail and/or email. Unions also have the right to receive notices.
Employers can be fined between $2,000 and $10,000 for each violation of the notice requirements. Additionally, both state and federal law impose fines and penalties for failing to comply with other worker authorization requirements.
The Labor Commissioner developed a template to meet the posting requirement. Employers can use the Notice to Employees: Government Inspection of Employment Eligibility Records and Notice to Employees: Government Inspection of Employment Eligibility Records – Spanish.
Employers need to make sure they are ready to meet all notice requirements — the 72-hour timeframes are short and standardized processes will help employers meet their compliance obligations. Employers should consult with legal counsel if they have any questions or concerns.