California Immigration Law Places Employers in Tough Position

Employers must ask ICE agents to show a warrant or subpoena

By Toni Vranjes April 23, 2018
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Several months after it went into effect, California's new immigration law, AB 450, has many of the state's employers worried, according to attorneys and trade association representatives. Employers are concerned that the law places them in the middle of a dispute between the federal and state governments.

AB 450—which is aimed at protecting immigrants' rights—was passed in response to President Donald Trump's administration and its crackdown on undocumented workers. The state law places severe restrictions on federal immigration agents' ability to enter the workplace and review employee records.

Attorneys and trade associations are preparing employers in the event that federal immigration authorities show up at their workplace. Businesses should take a number of steps to make sure they're ready for a visit by U.S. Immigration and Customs Enforcement (ICE) agents. In addition, employers need to know about the California law's notice requirements and its restrictions on reverifying employment eligibility.

Key Provisions

  • Under AB 450, employers are prohibited from allowing federal immigration agents to enter nonpublic areas of a worksite without a judicial warrant.
  • The new law prohibits employers from allowing federal immigration agents to access, review or obtain employee records without a subpoena or judicial warrant. These restrictions don't apply to I-9 employment eligibility verification forms and other documents for which a Notice of Inspection has been given to the company.
  • Employers that receive a Notice of Inspection from the federal government must notify employees within 72 hours of receiving the inspection notice.
  • The state law prohibits employers from reverifying the employment eligibility status of current employees unless required by federal law.
  • The penalties for violating the first three provisions are $2,000 to $5,000 for a first violation and $5,000 to $10,000 for each subsequent violation. For the fourth provision, the penalty is up to $10,000 for a violation.
  • However, the state is facing a legal challenge. The U.S. Department of Justice is suing California, alleging that AB 450 and two other state laws make it difficult for the federal government to enforce immigration laws.

Confusion and Concerns

Because of the new California law, many employers believe they're caught between competing demands from the state and federal governments.

"I think they feel like they're in the crossfire between the two," said Bryan Little, director of employment policy for the California Farm Bureau Federation.

Benjamin Ebbink, an attorney with Fisher Phillips in Sacramento, said that when talking to clients last year about AB 450, they expressed worry and confusion and perceived it to be a no-win situation. Then in January, California Attorney General Xavier Becerra heightened their fears, Ebbink said. Becerra held a news conference, warning employers of harsh consequences if they violated the California law.

There's much confusion swirling around the issue of internal self-audits of I-9 forms, said Carl Shusterman, an immigration attorney in Los Angeles. If a California employer does a self-audit and reverifies current employees' work authorizations, then it might be fined by the state. But if the employer doesn't correct errors on I-9 forms, then it could face heavy fines imposed by the federal government.

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

Another source of confusion involves determining who is considered an "immigration enforcement agent" under AB 450, said Karine Wenger, an attorney with Fragomen, Del Rey, Bernsen & Loewy in San Diego. Does this include only ICE officers, or does it also include Fraud Detection and National Security (FDNS) inspectors? Her view is that ICE officers fall under this definition, but FDNS inspectors do not. Attorneys need clarification from Becerra, she said.

To deal with these types of concerns, attorneys and trade associations are trying to ensure that employers are ready for AB 450. For instance, Shusterman recently gave a seminar on this topic in Santa Barbara. He noted that one participant had many questions about reverifying old I-9 forms.

Little said his organization is educating agricultural employers about the legislation by putting on a webinar and writing articles.

Sharokina Shams, spokeswoman for the California Restaurant Association, said that her group has been informing businesses through its weekly newsletter and by posting information on its website.

However, Shams said that employers can prepare only to a certain point. Despite their best efforts to verify work authorization, businesses might have undocumented workers on staff and not even realize it.

"Ultimately, people who want to work provide identification, and employers accept that identification," Shams said. "They don't necessarily know there's a problem until ICE shows up at the door."

Tips for Employers

Employers should select an "immigration point person" to speak with ICE agents who arrive at the workplace, according to Ebbink. If ICE agents do arrive, staff should make sure that the agents remain in a public workspace, he added.

The point person should ask to see if the agents have the necessary documents. Be prepared to turn ICE agents away if they don't have those documents, said Christopher Olmsted, an attorney with Ogletree Deakins in San Diego.

Meanwhile, employers should conduct training on how to properly complete I-9 forms, he added.

In addition, Olmsted recommends that companies conduct self-audits of I-9 documents to ensure compliance with federal law. Identifying deficiencies on I-9 forms doesn't necessarily involve reverifying employment eligibility, he noted.

If an employer does an audit and finds that the information is incorrect, documentation is missing or someone isn't authorized to work, this can be corrected, and Jocelyn Campanaro, an attorney with Fisher Phillips in Denver. She noted that this wouldn't be a reverification.

Wenger agrees. "We strongly recommend internal audits of I-9s, especially in today's climate, where we're going to see an increase in raids and I-9 inspections," she said.

However, companies should always keep in mind AB 450's restrictions on reverifying work authorization. Olmsted recommends that employers seek the advice of legal counsel on issues regarding self-audits and reverification.

Toni Vranjes is a freelance business writer in San Pedro, Calif.

 

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