December 28, 2017
Several of our clients have operations in California and their HR teams are often tasked with supporting facilities and employees that are based in California. Yet another important California difference is what employers must do, and must not do, when faced with a Federal immigration compliance inspection, and important considerations as to how the company currently maintains its Form I-9 records.
Recent changes in California law can impact any company with California operations, even if the company’s home office is located elsewhere.
California law, AB-450, now prohibits employers operating in California from providing voluntary consent to an immigration enforcement agent to:
- provide access to enter any nonpublic area of a place of labor without a search warrant signed by a judge;
- have access to, review, or obtain the employer’s employee records without a subpoena or a search warrant.
Violations of either provision are punishable by civil fines between $2,000 to $5,000 for a first violation and between $5,000 - $10,000 for each subsequent violation.
What this means
Employers with California operations should identify “public” and “nonpublic” areas in their facilities. Usually when ICE begins an immigration inspection they personally visit the facility to drop off a Notice of Inspection, and seek a waiver of the three-day notice provision to immediately gain access to the company’s Form I-9s. In California, when an ICE agent arrives, that person must be kept within the “public” area of the facility, except where the employer might take the ICE agent briefly to a nonpublic area where no other employees are present, solely for the purpose of verifying a judicial warrant, provided the company does not give consent to search nonpublic areas in the process. In reality, these areas may be difficult to achieve given the layout of many facilities.
Further, AB-450 has important ramifications for employers outside of California. If your company maintains its employee records in a central location and if any of your workers are California employees, care must be taken to prevent access to the company’s employee records absent a search warrant or a subpoena. Companies should always maintain their Form I-9 records separate from employee personnel files. For example, if Form I-9s are intermingled with employee records and the company waived the three-day notice rule, or provided employee records in defense of the immigration inspection, the agent has access to those files and your company’s South Carolina office probably just violated California law at least with respect to those California employees.
When any company with California operations becomes the subject of an ICE audit, there are now specific notice provisions that must be made to its California employees, if those California employee’s documents are provided to an immigration enforcement agent. Within 72 hours of receiving the Notice of Inspection, each California employee must be notified in the standard language of normal company employment-related communications. This notice must contain specific information, including a copy of the NOI, and must be provided to any “exclusive bargaining representative[s].”
During the course of an immigration investigation, the employer must provide additional information within 72 hours of receiving any notice from ICE to “affected employees” in California. This notice must contain specific information and be personally delivered, or sent via email and U.S. mail, and also be provided to the exclusive bargaining representative. An affected employee is a worker who has been identified by ICE to potentially lack work authorization, or one whose work authorization documents (but not identity documents) have been identified by ICE to have deficiencies.
Further, all employers are prohibited from reverifying the employment eligibility of a current employee in violation of federal law. Examples of this are when an employer attempts to reverify an expiring Green Card, or improperly conducts an I-9 audit and reverifies employees unnecessarily. Companies with California operations who do with respect to any California employee will subject themselves to a one-two punch of first the U.S. DOJ’s IER Section, and then to a civil penalty of up to $10,000 by the California Labor Commissioner.
If your company has operations in California, be aware of these provisions in the new California employment code. Issues such as these emphasize that as employers are subjected to increased scrutiny for immigration compliance matters, they must also be proactive to protect their companies from violations of state law in connection with Federal government investigations.
David J. Garrett’s law practice helps businesses and people get where they need to go. He focuses on immigration-related matters and civil litigation, representing both individuals and companies. David is a member of the Firm's employment and labor and construction practice groups, and leads the Firm's immigration practice.