As of January 1, 2018, California employers have certain obligations to their employees when they hear from Immigration and Customs Enforcement (ICE) officers. ICE is the federal agency that enforces national immigration laws, including laws regarding Form I-9 and employee authorization to work legally in the United States. Under the new California law, employers must notify employees of certain ICE enforcement actions and keep certain employment records confidential unless ICE officers present a subpoena or judicial warrant.
President Trump was elected based, in part, on promises to crack down on undocumented immigrants and prevent people from entering the United States illegally. Our nation’s immigration system is created and enforced at the federal level, which means Congress has the authority to legislate which people may and may not enter or stay in this country, and the President has the power to enforce the laws through the actions of federal agencies.
However, many cities—in California and other states—have passed laws declaring themselves to be “sanctuary cities.” What this means on the ground varies depending on the local law, but generally city employees are prohibited from cooperating with federal immigration authorities, unless such cooperation is required by state or federal law. Many California cities, including San Francisco and Berkeley, have long been sanctuary cities; others, including Los Angeles, have passed sanctuary ordinances in response to President Trump’s election. And, as ICE steps up its enforcement sweeps and raids in the Golden State, state and local governments are taking further actions to protect their residents and workers.
California’s Immigrant Worker Protection Act, which applies to employers of all sizes, imposes three basic requirements:
Employers may not allow immigration enforcement agents to enter any area of the workplace that is not open to the public (such as a back office or break room), unless the agent has a judicial warrant to enter. An employer may bring an agent to a nonpublic area of the workplace in order to determine whether the agent has a warrant, but only if no employees are present and the employer doesn’t give consent to the agent to search the nonpublic area.
Employers that violate this part of the law must pay a penalty of $2,000 to $5,000 for the first offense and from $5,000 to $10,000 for subsequent offenses. However, an employer won’t have to pay the fine if a court finds that the agent entered without the employer’s consent.
Employers may not voluntarily consent to an immigration enforcement officer’s review, access, or obtaining employee records, unless the agent has a judicial warrant or subpoena. This provision doesn’t apply to Form I-9, if the employer has received a Notice of Inspection from the government. (Form I-9 is the form employers and employees complete at the beginning of the employment relationship, documenting that the employee has presented proof to the employer of the employee’s identity and authorization to work in the U.S. See our article on using I-9 forms to verify work authorization to learn more.) The penalties described above also apply to violations of this provision, with an exception for employers whose records were examined without consent.
Within 72 hours of receiving a Notice of Inspection for I-9 forms from the federal government, employers must give employees notice of the inspection, by posting it in the language regularly used to communicate with employees and by providing notice to the employees’ authorized representatives (for example, their union). A copy of the notice received from the government must be included. The California Labor Commissioner has developed a template notice employers may use for this purpose.
After an inspection, the employer must give a copy of the government notice containing the results to any affected employee and his or her representative, as well as information regarding the employer’s and employee’s obligations. The employer must provide this notice within 72 hours after receiving the results, and if possible, deliver it at work by hand. The notice must describe any deficiencies or other problems identified in the government notice, the deadline for correcting these problems, the time and date of any meeting with the employer to correct the problems, and the employee’s right to representation at the meeting.
Employers that fail to provide the required notices to employees may be subject to civil penalties in the same amounts as described above.
Because this law is new, and because it puts employers in the middle of this ongoing conflict between the state and federal governments, employers should get some legal advice well before ICE agents knock on the door. An experienced lawyer can let you know how to train front-line employees to deal with immigration agents, provide notice documents to use with employees, and advise your company about how to handle work authorization deficiencies without running afoul of state or federal law.