Judge Rules California Employers May Allow ICE Access Without Warrant

Companies must still notify workers before an inspection

Roy Maurer By Roy Maurer July 10, 2018
Judge Rules California Employers May Allow ICE Access Without Warrant

​California employers will not be penalized for allowing federal immigration enforcement agents without a judicial warrant or subpoena to access their worksites and review employee records after a federal district court temporarily blocked the state from enforcing a key provision of a controversial 2017 law.

Judge John Mendez of the U.S. District Court of the Eastern District of California approved the Justice Department's request for a preliminary injunction against sections of the Immigrant Worker Protection Act, signed into law in October 2017. The court determined that most of the law, which went into effect Jan. 1, was pre-empted by federal statute, but it left in place a provision that requires employers to notify employees and their labor unions before and after Form I-9 inspections.

Assemblyman David Chiu, D-San Francisco, the chief sponsor of the bill that became the law, said that it "provided employers with clarity about what to do when ICE [Immigration and Customs Enforcement] agents target their places of business with indiscriminate raids."

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Federal Supremacy

The Department of Justice sued the state in March. "The federal government's primary argument was that when a state passes a law that forces an employer to choose between following federal law or following state law—at the risk of facing state penalties—the state is creating an inherent obstacle that prevents federal law from being followed," explained Ann Cun, founder and managing attorney of Accel Visa Attorneys, an immigration law firm in San Leandro, Calif.

Mendez concluded that California's law was a violation of the U.S. Constitution's Supremacy Clause, which prohibits states from enforcing legislation that conflicts with federal laws enacted by Congress.

The court found that several provisions of California's law discriminate against private employers who cooperate with the federal government, said Anthony Oncidi, a partner in the Los Angeles office of Proskauer. "Among other things, the law imposed fines on private employers of up to $10,000 per violation," he said. "The court found that a law which imposes monetary penalties on an employer solely because the employer voluntarily consents to federal immigration enforcement's entry into nonpublic areas of their place of business or access to their employment records impermissibly discriminates against those who choose to deal with the federal government."

Employer Takeaways

Until further notice, employers will not violate state law if they grant access to ICE agents without a warrant or subpoena or allow those agents to access employee records. However, employers may still choose to require a warrant before admitting enforcement agents or before granting records access.

The court also blocked a section of the law limiting an employer's ability to reverify the legal work status of employees. Current federal law requires employers to conduct reverification before an employee's existing work authorization expires.

Employers continue to be subject to requirements to notify employees within 72 hours of receiving a Notice of Inspection and to provide written notice of the results of the inspection within 72 hours after it has ended.

"Employers should implement a policy where notice can be effectuated quickly and efficiently," Cun said.

Both attorneys agree that the decision will likely be appealed. "I see this as only a temporary reprieve for employers," Cun said. "The battle is just beginning and private employers are being held hostage until the dust settles."



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