California AG releases guidance to employers on Immigrant Worker Protection law

15 Feb 18

UNITED STATES

California Attorney General Xavier Becerra has released an advisory providing guidance on the Immigrant Worker Protection Act, which went into effect Jan. 1, and the state Labor Commissioner’s Office has issued an FAQ to help employers comply with the law. Generally, employers are prohibited by the law from voluntarily giving federal immigration enforcement agents access to nonpublic worksite areas or employee records. The law also requires that employers provide notice to all workers within 72 hours of receiving a Notice of Inspection of the employer’s I-9 Employment Eligibility Verification forms. Employers are subject to certain penalties for each violation of the provisions.

Key points:

Employers are prohibited from giving voluntary consent to federal immigration enforcement agents to gain access to nonpublic areas of the workplace unless the agent shows a judicial warrant.

  • “Voluntary consent” means freely asking or inviting an agent to an area of the workplace by words or by freely opening doors to a nonpublic area; however, the law does not require physically blocking or interfering with an agent’s access. Whether voluntary consent is given will depend on the totality of the circumstances and facts in a given case.
  • “Nonpublic” means an area of the workplace that “the general public is not normally free to access or enter,” such as an office where payroll or personnel records are kept or an area that the employer designates as restricted to employees by posting signs or keeping doors closed. Examples of a “public” area of a workplace include the dining area of a restaurant or a sales floor of a store during business hours. Whether an area is public or nonpublic will depend on a case-by-case determination and assessment of all the circumstances in a particular case.
  • A “judicial warrant” must be issued by a court and signed by a judge, with the name of the issuing court appearingat the top of the warrant. A sample judicial warrant has been posted by the California Attorney General here, but not all judicial warrants appear the same. An immigration enforcement agent may show up with an “administrative warrant” or “warrant of deportation or removal” issued by a government agency, but not issued by a court and signed by a judge—these documents, however, are not judicial warrants.
  • Employers are subject to fines of $2,000 to $5,000 for a first violation, and $5,000 to $10,000 per violation for each subsequent violation.

Employers are prohibited from giving voluntary consent to federal immigration agents to access, review or obtain employee records unless the agent shows a subpoena or judicial warrant.

  • Examples of “voluntary” consent include freely stating that the immigration enforcement agent may look at employee records, freely telling the agent where to find employee records or freely turning on a computer or opening a file cabinet where employee records are kept for an agent. An employer does not violate this provision if the immigration agent accesses, reviews or obtains employee records without the consent of the employer.
  • A subpoena requires the production of documents or appearance of a witness and may be issued without court approval if the government agency is authorized to issue it. The subpoena must describe the particular information sought. The attorney general’s office has posted a sample subpoena here, but employers should note that not all subpoenas appear the same.
  • The law does not prohibit employers from providing federal immigration enforcement agents voluntary access to employee records in response to a Notice of Inspection of I-9 Employment Eligibility Verification forms.

Employers must post a notice within 72 hours of receiving an I-9 notice of inspection to all current employees in a language normally used to communicate with employees.

  • The Labor Commissioner’s Office has now provided a template of the notice that employers may use to fulfil the notice requirement, available here.
  • The event that triggers the 72-hour period is the employer’s receipt of the Notice of Inspection of I-9 forms, not a visit by immigration enforcement agents. A visit by agents alone, however, does not automatically trigger the notice requirement unless the agents serve the Notice of Inspection during the visit.
  • Employers must also provide written notice to each current affected employee and their union representative within 72 hours of receiving the written notice of the results of the I-9 inspection. The notice must be hand-delivered in the workplace and include a copy of the results and notice of the obligations of the employer and employee. An “affected employee” is an employee identified by the inspection as someone who may lack work authorization or whose work authorization documents may have deficiencies.
  • Employers are subject to penalties of $2,000 to $5,000 for a first violation and $5,000 to $10,000 for each subsequent violation. Penalties do not apply if the federal government expressly directs the employer not to provide notice to an employee.

Other prohibitions

  • Employers are prohibited from reverifying the employment eligibility of a current employee at a time or manner not required by federal law. Employers who violate this provision are subject to civil penalties of up to $10,000.
  • The law does not restrict employers from complying with any memorandum of understanding that covers the employer’s participation in E-Verify.

BAL Analysis: While the advisory and FAQ provide many helpful clarifications, they also make clear that the determination of whether an employer has violated the new law will depend on individual circumstances and a case-by-case assessment. California employers are encouraged to consult legal counsel on how to prepare for an immigration enforcement inspection and comply with the Immigrant Worker Protection Act.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@balglobal.com.

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