California Employers May Get Caught in Immigration Battle

Some actions in California conflict with the federal government’s position

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Some actions in California conflict with the federal government's 

California lawmakers and the federal government have conflicting approaches to immigration policy, which may cause confusion for employers in the state.

Immigration has been a state legislative priority over the last five years, and an employment-related immigration bill has been enacted almost every year, said Michael Kalt, an attorney with Wilson Turner Kosmo in San Diego.

California tends to be pro-immigration and pro-employee, noted Davis Bae, an attorney with Fisher Phillips in Seattle. A large part of the state's residents were born outside of the country, and many hold some kind of connection with immigration-related issues, even if they are not undocumented.

In contrast, immigration attorneys predict that the federal government's workplace enforcement efforts—like raids, I-9 audits and site visits—are likely to increase under President Donald Trump's administration.

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

"There likely will be considerable antagonism between California and the federal government on this subject," Kalt said.  "And not simply the inherent differences that arise when different parties control different levels of government with different approaches."

He said the state and federal government are likely to quickly react to what the other is doing or proactively create legislation in anticipation of what it thinks the other will do.

Here are some examples of those conflicts that may impact businesses and employers.

Workplace Inspections

California legislators may have good intentions with their pro-immigration measures, but some workplace immigration actions can have significant consequences for employers, Bae said.

For example, A.B. 450 would place additional burdens on employers when they respond to the federal government's requests to inspect their worksites and documents.

As of now, employers may voluntarily comply with requests from federal agents to access the worksite during an investigation. However, if A.B. 450 were enacted, agents would have to present a warrant before an employer could comply with such requests.

Among other things, employers would also have to tell workers about an inspection within 24 hours of receiving notice from federal agents.

This may be well-intentioned, Bae said, but when an employer tells workers that U.S. Immigration and Customs Enforcement (ICE) agents are coming, employees might vacate the worksite. "It might sound like federal agents are going to come in with guns blazing."

The bill has been amended several times to address such issues. Most recently, on May 30, it was amended to limit the advance notice requirement to inspections of I-9 forms and other employment records, rather than other worksite enforcement activities like raids and employee interviews. The proposed penalty range for noncompliance under the bill was also reduced from $10,000-$25,000 to $2,000-$5,000 for the first violation and up to $10,000 for subsequent violations.

The bill passed the state Assembly on May 31 and was sent to the Senate for consideration. 

Kalt said he wouldn't be surprised to see Gov. Jerry Brown sign A.B. 450—even though there will likely be legal challenges arguing that the proposed legislation is pre-empted by federal law.  

Generally, Brown has tried to avoid creating too much conflict with federal law and to avoid signing laws that he knows would be pre-empted by federal law, Kalt noted. "However, on this particular issue, he might relish the conflict with federal authorities both because of how California feels about these issues and his seeming disdain for President Trump."

Border Wall

Another immigration bill moving through the California Legislature would deny state contracts to businesses that help build a border wall.

Starting Jan. 1, 2018, S.B. 30 would prohibit the state from awarding or renewing contracts with anyone who "is providing or has provided goods or services to the federal government for the construction of a federally funded wall, fence or other barrier along California's southern border" after Dec. 31, 2017.

There is no border wall funding from the federal government yet, so this issue may be tied up for a while, Bae said. He noted that one problem with the bill is that a state contractor may not know it's involved in the wall construction—particularly if it is supplying goods or services as a subcontractor.

This could cause some confusion and lead to enforcement issues depending on how deep the state wants to go in looking at the relationship between the contractor and the border wall project, he added.

S.B. 30 passed the state Senate on June 1 and was sent to the Assembly for review. 

Sanctuary Cities

Some cities in California are challenging an executive order Trump issued in January that would withhold federal funding for so-called sanctuary cities that don't cooperate with ICE agents.

San Francisco and Santa Clara County have sued Trump over this bill, and a federal judge temporarily blocked the executive order while the lawsuit is being decided.

The conflict between these cities and the federal government has caused some concern for employers that businesses in these cities may be prime targets for ICE raids and I-9 audits.

"As for which employers get targeted, it is tough to say," Kalt said, "although the concern certainly is that ICE will target employers, including in sanctuary cities, to send a message."

But Kalt thinks the Trump administration may focus more on criminal enforcement rather than on enforcement at employer worksites. The federal government may want to "avoid headlines about deporting hardworking, law-abiding individuals and focus on those individuals that may put sanctuary cities in a tougher position to defend."

He said the federal government might tighten eligibility checks—perhaps by making E-Verify mandatory.

"It's a messy topic," said Christopher Thomas, an attorney with Ogletree Deakins in Denver. Employers should recognize that they may be targets in the eyes of the new administration.

He said employers should take steps to make sure their I-9 forms are in order. They should consider conducting an I-9 audit and working with outside counsel to clear up any potential problems.

 

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