California Lawmakers Approve Controversial Workplace Immigration Bill

A.B. 450 would prohibit employers from voluntarily consenting to federal immigration worksite inspections

Lisa Nagele-Piazza, J.D., SHRM-SCP By Lisa Nagele-Piazza, J.D., SHRM-SCP September 19, 2017
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A bill that would put California employers in a difficult position in the conflict between federal and state immigration policies has been sent to Gov. Jerry Brown's desk. Employment attorneys told SHRM Online that Brown will probably sign the bill, but there's no guarantee.

Under A.B. 450, which was introduced by Assemblyman David Chiu (D-San Francisco), employers could no longer voluntarily consent to federal Immigration and Customs Enforcement (ICE) worksite inspections.

This bill is being portrayed as a way to resist President Donald Trump's immigration-related actions, said Benjamin M. Ebbink, an attorney with Fisher Phillips in Sacramento. There will be significant pressure on the governor to sign the bill to show that California stands "against Trump" and protects immigrant workers, he said.

Among other things, A.B. 450 would require 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.

Currently, employers may voluntarily comply with federal agents' requests to access the worksite during an immigration-related investigation.

If the bill is signed into law, employers would need to train their staff to know that they can no longer simply consent to ICE access but must insist that agents have a warrant or subpoena, said Michael Kalt, an attorney with Wilson Turner Kosmo in San Diego. Employers would also have to understand the bill's pre- and post-inspection notice requirements and ensure that they adhere to deadlines, he added.

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

The Society for Human Resource Management (SHRM) opposes the bill. A.B. 450 "will impose various onerous requirements on public and private employers with regard to a workplace compliance action undertaken by federal immigration agency personnel," according to a letter SHRM sent to the California State Senate.

Multiple Amendments

Ebbink noted that there have been some significant amendments to the bill in recent days.

"Whether this reflects the fact the bill was rushed into print initially without a good understanding of the issues presented or the fairly significant opposition it faced from the HR and business community or both is unclear," Kalt said, adding that the amendments have generally been helpful by:

  • Specifying exactly what type of information an employer may request when an immigration enforcement agency arrives.
  • Reducing the administrative burdens on employers and HR professionals under the new notice requirements.

Despite the changes, the main premise of this bill remains, Ebbink said: It eliminates the ability of an employer under federal law to voluntarily consent to ICE access to the worksite.

SHRM said that it appreciates lawmakers' willingness to amend the bill but that it still has concerns. "From the human resource professional's perspective, A.B. 450, while well-intentioned, will add a host of unnecessary burdensome requirements, create many logistical challenges, and could possibly force human resource professionals to decide between abiding by federal law or state law," SHRM's letter to the state Senate said.

HR Challenges

If A.B. 450 is enacted, employers will have to carefully revise their procedures and train the staff members who would deal with these issues, Ebbink said. For example, he said, front-line staff would need to be instructed what to do when ICE shows up at the worksite. 

"Many employers and staff have an automatic reaction to voluntarily comply with government authorities and allow ICE access," he added. "But this bill requires you as the employer to stand up and say, 'Where's your warrant, ICE?' "

Employers would also need to be aware of the new posting and notice requirements that would be triggered when the business receives notice of a pending ICE inspection, Kalt said. For example, he said, employers would have to post an alert to employees within 72 hours of receiving notice of an inspection—and looking ahead, they may want to obtain the template that the California labor commissioner would be required to make available by July 1, 2018, if the bill is enacted. 

Employers would also need to train relevant staff on the post-inspection notice requirements that would need to be sent to employees within 72 hours following an inspection.

Kalt added that employers would need to ensure that supervisors are not reverifying the work eligibility of any current employees in a manner that is precluded by federal law.

"Employers need to be aware of the specific requirements or they could face stiff penalties," Ebbink said.

 

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