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Employers would have to notify labor commissioner and employees about federal enforcement actions
Do you know when you can refuse a federal agent's request to review your records and when you can't? In California, HR professionals may soon need to be able to make that distinction—fast.
The California Legislature is considering a bill that would place additional burdens on employers when they respond to the federal government's immigration enforcement activities. The proposed law could cause confusion about how to comply with both state and federal law, employment attorneys told SHRM Online.
Except as "otherwise required by federal law," A.B. 450 would direct employers not to let federal immigration agents on the worksite without a warrant and not to give agents access to employment records—like I-9 forms—without a subpoena, explained Michael Kalt, an attorney with Wilson Turner Kosmo in San Diego.
Currently, employers may voluntarily comply with federal agents' requests to access the worksite during an immigration-related investigation. But under the proposed law, agents would have to present a properly executed judicial warrant before an employer could comply.
[SHRM members-only toolkit: Complying with I-9 and E-Verify Requirements in the United States]
The bill would place HR professionals in the precarious position of trying to decide whether something "is required by federal law," Kalt said. They would have to make a snap determination about whether to comply with the federal government and potentially violate state law or follow the state law and potentially run afoul of federal requirements.
The proposed legislation would also require employers to notify workers, their unions and the state labor commissioner when they become aware of any upcoming immigration enforcement actions, such as an audit, I-9 inspection, workplace raid or other federal immigration activity.
So what is the purpose of the proposed law? California legislators want to make it more difficult for federal authorities to enforce immigration laws, and especially to deport undocumented immigrants, said James McDonald Jr., an attorney with Fisher Phillips in Los Angeles and Irvine, Calif.
State lawmakers are responding to increased federal immigration enforcement activities. The Washington Post reported that immigration-related arrests rose over 30 percent during the first weeks of President Donald Trump's administration.
"Employers in California find themselves in a tug of war between the state and federal government, putting them in a difficult position of trying to comply with both state and federal law, which may conflict with each other," said Katherine Catlos, an attorney with Kaufman Dolowich & Voluck in San Francisco. If enacted, she said, A.B. 450 would exacerbate that tug of war.
Under current law, immigration enforcement officers can obtain I-9 forms and other employment records by serving an employer with a "notice of inspection," which gives the employer three days to produce the records, McDonald explained. He said if A.B. 450 passes, U.S. Immigration and Customs Enforcement (ICE) is likely to just issue subpoenas in California instead.
"The greatest impact of the legislation, however, will be in its notice requirements designed to thwart deportations," McDonald said. If employees are given advance notice of inspections, they could choose not to come to work that day.
Even an employer's self-audit would be subject to the state labor commissioner's review. Businesses would have to notify the labor commissioner before doing their own internal I-9 audit and before checking current employees' work authorization. They would also have to allow the labor commissioner to be present in the workplace during these activities.
Substantial Employer Fines
If enacted, A.B. 450 would impose substantial penalties on employers that voluntarily cooperate with federal government investigations involving the immigration status of employees, McDonald said.
The bill would impose a civil penalty between $10,000 and $25,000 on an employer that allows a federal immigration enforcement agent to have access to the workplace without a warrant or allows an agent to have access to employee records without a subpoena.
Key Points for Employers
If the California Legislature passes the bill and it's signed by the governor, Catlos said, employers should consider the following steps when facing federal immigration enforcement actions:
Examine any warrant and make sure it is signed by the court.
Understand the scope of the warrant.
Avoid activities that could support a harboring charge, such as hiding employees, aiding in their escape from the premises, or providing false or misleading information.
Kalt said the bill is likely to pass the Legislature, but it will probably be amended as it moves through the process. Whether Gov. Jerry Brown will sign the bill, however, is harder to predict, he noted.
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