California Law Restricts Employer Cooperation with Immigration Agents

California’s Immigrant Worker Protection Act, AB 450 (the Act), went into effect on January 1, 2018. It creates numerous restrictions to prevent an employer’s voluntary cooperation with worksite immigration inspections.

Pursuant to the Act, Government Codes 7285.1 and 7285.2 prohibit employers from voluntarily allowing access to non-public areas of the worksite without a search warrant, or consenting to immigration agent review or access, or obtaining of employees’ records without a warrant or subpoena. The ban on voluntary surrender of employee records is not applicable to I-9 forms and other documents where a Notice of Inspection has been provided to the employer.

The Act also creates new requirements for employers under the Labor Code. Section 90.2 requires any employer that receives notice of an I-9 inspection to post notice for its employees within 72 hours, including the name of the agency, the date notice was received, the nature of the inspection (if known), and a copy of the Notice of Inspection itself. The Labor Commissioner has provided a template for the required notice.

If the inspection results list a particular employee as lacking proper documents or work authorization (an “affected employee”), the employer must provide the affected employee with hand delivered notice, if possible, or email/mail notice if not, of the identified deficiencies, time for correction, when any meeting with the employer for such corrections is scheduled, and notice of the employee’s right to representation in that meeting.

All such notices also need to be provided to collective bargaining representatives for the employee.

Violation of these laws carries potential fines from $2,000 to $5,000 for a first offense and $5,000 to $10,000 for subsequent offenses, unless the employer did not consent to access. Only the Labor Commissioner or Attorney General can enforce this law.

Finally, subject to a $10,000 fine, employers may not reverify an employee’s work authorization unless specifically required by federal law.

These laws do not restrict any employer obligations under an E-Verify Memo of Understanding.

The Department of Industrial Relations has provided an FAQ to answer some of the questions that employers may have under this law.

While California provides penalties for violating these laws, violation of federal laws requiring verification of employee eligibility also carries stiff penalties, and it is important to comply with such laws. See, for example, Immigration Law Requirements for Employers (October, 2011) and the federal website.

For further information or assistance, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

Helena Kobrin

March 2, 2018