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California employers must also understand new state immigration law
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An uptick in federal immigration enforcement priorities combined with new California rules make it more challenging than ever for employers to ensure immigration compliance. Properly completing and maintaining I-9 forms is essential.
Mistakes on I-9 forms are common, and employers may not even know their forms have errors until they are audited, said Sean Olender, an employment immigration attorney in San Jose, Calif. He was speaking at the California State Council of the Society for Human Resource Management's 2018 California State Legislative & HR Conference in Sacramento.
[SHRM members-only how-to guide: How to Retain and File I-9 Forms]
Here are some of the key things he said employers shouldn't do when filling out I-9 forms:
Employers should audit their I-9 forms and procedures to ensure compliance. If they use an attorney to conduct an audit, all communications with the attorney are protected by privilege, Olender noted. However, if the audit is conducted internally or by a nonattorney, communications, including e-mail, phone calls, text messages, documents, reports and other records created for the audit, are not subject to the attorney-client privilege.
There is a widening fissure between California and the federal government centered around immigration laws, said Michael Nader, an attorney with Ogletree Deakins in Sacramento. California's Immigration Worker Protection Act (AB 450) protects workers from immigration enforcement by prohibiting employers from providing "voluntary consent" to federal immigration enforcement agents to access "any nonpublic areas of a place of labor." Employers will not be penalized, however, for permitting federal agents with judicial warrants or subpoenas to access the workplace and records.
California employers must also comply with the act's notification and posting requirements regarding inspections of I-9 forms or other employment records, said Elizabeth Stonhaus, an attorney with Kaufman Dolowich & Voluck in San Francisco. Employers that violate the act are subject to civil penalties of $2,000 to $5,000 for a first violation, and $5,000 to $10,000 for each subsequent violation.
"Not only are California's employers grappling with the statute's basic meaning, they have also been placed at the center of an ongoing federal pre-emption controversy," Stonhaus noted. The federal government filed a lawsuit in March against California, arguing that AB 450 and other recently enacted California immigration laws are unconstitutional.
"For now, employers should communicate with their employees about the appropriate individuals to handle communications with immigration enforcement agencies," she said.
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