California Employers Get Help with Immigration Inspection Notices

Businesses can no longer voluntarily consent to ICE inspections

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California employers can no longer voluntarily consent to federal Immigration and Customs Enforcement (ICE) worksite inspections; rather, they must obtain warrants and subpoenas from immigration agents and provide certain notices to employees. To aid employers through the new process, the California Division of Labor Standards Enforcement (DLSE) recently developed a template (see http://www.dir.ca.gov/DLSE/LC_90.2_EE_Notice.pdf) that employers may use to notify employees about an upcoming inspection.

A.B. 450, which was introduced by Assemblyman David Chiu, D-San Francisco, took effect on Jan. 1, 2018. Among other things, the new law requires 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.

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

The Society for Human Resource Management (SHRM) and its strategic partner, the Council for Global Immigration (CFGI), opposed the bill.

"From the human resource professional's perspective, A.B. 450, while well-intentioned, would add a host of unnecessarily burdensome requirements, create many logistical challenges, and possibly force human resource professionals to decide between abiding by federal law or state law," said Jason Gabhart, SHRM's staff lobbyist in Sacramento.

Those onerous requirements include several notices that employers must provide to workers. The new DLSE template satisfies the requirements of the pre-inspection notice.

"It's good that the DLSE issued the template early," said Benjamin Ebbink, an attorney with Fisher Phillips in Sacramento. The DLSE had until July to create the template, but there have been some federal enforcement activities in the state and some notifications of inspection that were recently issued probably compelled the state government to get the template out early, he said.

The template is a convenient method for employers to notify workers of an upcoming inspection, Ebbink noted. Some employers and their attorneys already prepared a notice when the law took effect in January. Those notices can still be used as long as they comply with the requirements of the law, he added.

It is important for employers to note that the template only covers the pre-inspection notice, he added. Businesses must also issue a post-inspection notice of the results—but there isn't a template for that notice, and it doesn't appear that the DSLE will create one.

 

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