California as a Sanctuary State: Restrictions on Employers’ Compliance with Federal Immigration Actions

In October 2017, California passed the widely publicized Senate Bill 54, the unofficial “sanctuary state” bill, which bars state and local law enforcement agencies from asking people about their immigration status. Another new California law, the Immigrant Worker Protection Act (Assembly Bill 450), effective January 1, 2018, provides worksite immigration protection for employees while on the job.

Pursuant to AB 450, all public and private employers in California are prohibited from:

(1) providing federal immigration enforcement agents access to nonpublic areas without a judicial warrant;

(2) providing agents access to employee records without a subpoena or judicial warrant; and

(3) reverifying an employee’s eligibility to work unless specifically required by federal statutory law.

The exceptions to this prohibition are Form I-9 employment eligibility verification forms and instances where federal law requires employers to provide access to records.

An employer that fails to follow notice requirements can be fined between $2,000 and $5,000 for a first violation and between $5,000 and $10,000 for each subsequent violation.

Notice to Employees

AB 450 also requires employers post a notice to all current employees informing them of any federal immigration agency’s inspections of Form I-9 or other employment records within 72 hours of receiving a Notice of Inspection. Employers must also provide a copy of the Notice of Inspection to an affected employee upon reasonable request.  The notice must contain the name of the agency conducting the inspection, the date the employer received notice of the inspection, the nature of the inspection (if known), and a copy of the official “Notice of Inspection” provided by the immigration agency.  The notice must be posted in the language normally used to communicate with employees.

Once the inspection is over, within 72 hours of receiving the results, employers must give each affected employee a copy of the inspection results and written notice of the employer’s and employee’s obligations arising from the inspection within 72 hours of receiving the results. The California Division of Labor Standards Enforcement has provided a template of the notice to employees advising them of an inspection by immigration agencies.

Reverifying Employment Eligibility

AB 450 also explicitly forbids employers from reverifying the employment eligibility of a current employee at a time or in a manner not required by 8 U.S.C § 1324a(b). Doing so can result in a penalty of up to $10,000 per violation.

Practical Steps for California Employers

It remains to be seen the full impact the imposition of AB 450 will have on public and private employers in California and their interaction with federal immigration enforcement agents. California employers would be wise to take measures to ensure compliance in the face of the new law by considering the following:

• Training managers to ask immigration agents for judicial warrants and subpoenas
• Training managers to comply with new posting and notice requirements as well as post-inspection notice requirements
• Training Human Resources on when it is appropriate to reverify employees’ employment eligibility status and to ensure that no reverification of current employees occurs before it is required by federal law