Calif. Lawmakers Approve Bill Limiting Immigration Worksite Raids, Audits

Legislation sets up conflict between federal, state authorities, with employers caught in the middle

By Roy Maurer Jun 9, 2017
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California employers may soon be pitted against federal immigration agencies seeking to conduct worksite enforcement actions now that the state Assembly has passed the Immigrant Worker Protection Act (AB 450).

The legislation prohibits employers from allowing federal agents access to their workplaces without a warrant, and to employee records without a subpoena.

In addition to limiting California businesses from voluntarily complying with federal immigration authorities, the bill would impose new notice requirements regarding I-9 audits, enact new statutory penalties and provide greater worksite access to the state labor commissioner's office.

[SHRM members-only toolkit: Managing the Hiring Process in California]

"California has already seen a jump in immigration enforcement raids, and it is widely anticipated that worksite raids are next," said Assemblyman David Chiu, D-San Francisco, the chief sponsor of the bill. "[President Donald] Trump's threats of massive deportations are spreading fear among California workers, families and employers. I'm proud to author this legislation which … offer[s] new legal protections for individuals in our workplaces. At the same time, AB 450 offers employers clarity about what to do when ICE [Immigration and Customs Enforcement] agents target their places of business with indiscriminate raids."

The bill represents another front in the ongoing tension between California and the federal government on immigration, said Michael Kalt, an attorney at Wilson Turner Kosmo in San Diego, and the government affairs director for the California State Council of the Society for Human Resource Management. "While it is hardly unusual for California and the federal government to enact slightly differing versions of laws given their differences in terms of which party is in control and the constituents they reflect, it does appear unique to the extent that the two sides seem to be attempting to create conflict with" each other, he said. 

The California Labor Federation and the SEIU (Service Employees International Union) California are among the bill's supporters that claim immigration enforcement actions at workplaces often violate workers' rights.

"Past raids occurred under the auspices of narrow individual arrest warrants that ICE used to question and detain every single worker at a worksite, including U.S. citizens and workers lawfully present, violating their basic constitutional rights," according to Chiu's office.

The California Chamber of Commerce (CalChamber) and a multitude of employer associations oppose the legislation, saying that the costs to employers will be significant, including penalties levied on employers that choose to cooperate with federal authorities.

"An employer that is in full compliance with federal immigration laws and chooses to minimize disruption of business operations by federal officials by exercising their right to cooperate with federal enforcement officials will be penalized by the provisions of AB 450 with the imposition of steep penalties—not less than $2,000 and up to $10,000 for each violation," said Marti Fisher, a policy advocate for the CalChamber based in Sacramento.

"The newly added sections impose penalties that are far above the $1,000 [that] statutory law already permits," added Ann Cun, founder and managing attorney of Accel Visa Attorneys, an immigration law firm in San Leandro, Calif. "If the heart of the bill was to deter employers from acting improperly, the bill does nothing to help educate employers. Rather, it serves only to penalize and punish employers."

Provisions of AB 450 include:

  • Prohibiting employers from allowing federal immigration agents to access the workplace without a judicial warrant. "The bill does not consider the complexities employers are faced with when immigration enforcement officials arrive at the workplace," Fisher said. "Cooperation with law enforcement is often a prudent response to minimize disruption to the workplace."
  • Prohibiting employers from providing federal immigration enforcement agencies access to the employer's employment records, including I-9 forms, without a subpoena. "Currently, ICE may request an inspection of Form I-9 records from employers through a letter via mail, in person, a subpoena or warrant," Cun said.
  • Requiring employers to notify potentially affected employees of an upcoming I-9 audit 24 hours after the employer is notified, and again within 24 hours of receiving notice regarding the results of the audit. "Notification within 24 hours can be burdensome and pointless," Cun said. "It's unclear what purpose a 24-hour notice to all employees serves, other than to cause mass panic among workers. From an operational standpoint, this section would be a nightmare to implement. A more reasonable approach would have been to permit employers to notify impacted workers within a reasonable amount of time, consistent with the industry business hours and standards."
  • Requiring employers to notify the state labor commissioner of any federal immigration enforcement action within 24 hours of receiving notice about an impending worksite action, or immediately in the case of a surprise visit. "There is not and should not be a nexus between immigration enforcement and an inspection by the labor commissioner where no just cause is present," Fisher said. Kalt added that recent amendments have deleted prior language "suggesting that during these visits the labor commissioner would be entitled to conduct a 'wall to wall' audit of the employer regarding any other potential wage and hour or safety issues or to participate in the inspection and essentially represent an employee."
  • Limiting an employer's ability to conduct Form I-9 self-audits or check employment authorization documents of current workers. The bill requires the employer to once again notify the labor commissioner before conducting a self-audit or inspecting I-9 forms or work authorization documents. This is the most absurd of the provisions introduced, Cun said. "For employers intending to come into compliance with federal immigration rules, this bill imposes unreasonable restrictions on an employer's ability to follow immigration rules, at the risk of even greater federal penalties."

The bill was sent to the Senate May 31 for consideration. Kalt said he wouldn't be surprised to see Gov. Jerry Brown sign it—even though there will likely be legal challenges arguing that the proposed legislation is pre-empted by federal law.

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