California Governor Signs Controversial Workplace Immigration Bill

New law will prohibit employers from voluntarily consenting to federal immigration worksite inspections

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Gov. Jerry Brown signed a bill on Oct. 5 that will put California employers in a difficult position in the conflict between federal and state immigration policies.

A.B. 450, which was introduced by Assemblyman David Chiu (D-San Francisco), takes effect on Jan. 1, 2018. Under the new law, employers can no longer voluntarily consent to federal Immigration and Customs Enforcement (ICE) worksite inspections.

The bill was portrayed as a way to resist President Donald Trump's immigration-related actions, said Benjamin M. Ebbink, an attorney with Fisher Phillips in Sacramento. There was significant pressure on the governor to sign the bill to show that California stands "against Trump" and protects immigrant workers, he said.

Among other things, A.B. 450 will require employers to:

  • Obtain warrants and subpoenas from federal immigration agents before granting them access to nonpublic areas of the worksite or permitting them to inspect certain employee records.
  • Notify workers and their labor unions about an ICE enforcement activity within 72 hours of receiving notice of the inspection.
  • Provide each current affected employee and the employee's authorized representative with the results of an inspection within 72 hours of receiving such information from ICE.
  • Pay penalties of between $2,000 and $10,000 for violations.

Employers need to train their staff to know that they can no longer simply consent to ICE access but must insist that agents have a warrant or subpoena, said Michael Kalt, an attorney with Wilson Turner Kosmo in San Diego. Employers also must understand the bill's pre- and post-inspection notice requirements and ensure that they adhere to deadlines, he added.

[SHRM members-only toolkit: Complying with I-9 and E-Verify Requirements in the United States]

The Society for Human Resource Management (SHRM) opposed the bill. A.B. 450 "will impose various onerous requirements on public and private employers with regard to a workplace compliance action undertaken by federal immigration agency personnel," according to a letter SHRM sent to the California State Senate.

Multiple Amendments

Ebbink noted that there were some significant amendments to the bill since it was introduced.

"Whether this reflects the fact the bill was rushed into print initially without a good understanding of the issues presented or the fairly significant opposition it faced from the HR and business community or both is unclear," Kalt said, adding that the amendments have generally been helpful by:

  • Specifying exactly what type of information an employer may request when an immigration enforcement agency arrives.
  • Reducing the administrative burdens on employers and HR professionals under the new notice requirements.

Despite the changes, the main premise of this bill remains, Ebbink said: It eliminates the ability of an employer under federal law to voluntarily consent to ICE access to the worksite.

SHRM said that it appreciates lawmakers' willingness to amend the bill but that it still has concerns. "From the human resource professional's perspective, A.B. 450, while well-intentioned, will add a host of unnecessary burdensome requirements, create many logistical challenges, and could possibly force human resource professionals to decide between abiding by federal law or state law," SHRM's letter to the state Senate said.

HR Challenges

Employers will have to carefully revise their procedures and train the staff members who deal with these issues, Ebbink said. For example, he said, front-line staff will need to be instructed what to do when ICE shows up at the worksite. 

"Many employers and staff have an automatic reaction to voluntarily comply with government authorities and allow ICE access," he added. "But this bill requires you as the employer to stand up and say, 'Where's your warrant, ICE?' "

Employers also need to be aware of the new posting and notice requirements that will be triggered when the business receives notice of a pending ICE inspection, Kalt said. For example, he said, employers will have to post a form alerting employees within 72 hours of receiving notice of an inspection—and looking ahead, they may want to obtain the template that the California labor commissioner is required to make available by July 1, 2018.

Employers also need to train relevant staff on the post-inspection notice requirements that would need to be sent to employees within 72 hours following an inspection.

Kalt added that employers need to ensure that supervisors are not reverifying the work eligibility of any current employees in a manner that is precluded by federal law.

"Employers need to be aware of the specific requirements or they could face stiff penalties," Ebbink said.

 

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