Introduction: Last February, we provided an overview of California's Immigrant Worker Protection Act, AB 450. The law, which took effect on January 1, 2018, was a response to anticipated increases in federal immigration enforcement efforts under the Trump administration and was aimed at providing workers some protections from federal immigration enforcement actions in the workplace. AB 450 regulates three things: (1) the level of workplace access employers are permitted to give immigration enforcement officials, (2) notice to employees about immigration enforcement efforts, and (3) reverification of an employee’s employment eligibility.

On the issue of workplace access, AB 450 prohibits employers from providing “voluntary consent” to immigration enforcement agents seeking to access “nonpublic” work areas or to access, review, or obtain employee records without a warrant or subpoena. On the issue of notice to employees, AB 450 requires employers who receive immigration enforcement requests to provide two types of notice: (1) notice to all current employees (and any authorized representatives) of any inspections of I-9 forms or other employment records within 72 hours of receiving the government notice; and (2) targeted notice to “affected employees” and their authorized representatives if a government immigration enforcement inspection identifies the employee as lacking work authorization or valid I-9 documents. Finally, on the issue of reverification, AB 450 generally prohibits an employer from reverifying an employee’s eligibility to work in the United States.

In our February 2018 overview, we noted that “[a]s immigration generally falls under the exclusive power of the federal government, the [Immigrant Worker Protection Act] sets up a potential clash between state and federal jurisdiction that could play out in courts well into the future.” On July 5, 2018, Judge John A. Mendez of the United States District Court for the Eastern District of California – a George W. Bush appointee – issued an order addressing the law’s constitutionality in light of the “twin powers of California and the United States.” Ultimately, the court held that California may continue to enforce AB 450’s notice requirements, but took issue with the law’s access and reverification provisions.

The Federal Court Decision

In response to California’s enactment of the Immigration Worker Protection Act, the United States Department of Justice (DOJ) filed a motion to preliminarily enjoin the law. The DOJ challenged AB 450 as applied to private employers only, arguing that its voluntary consent prohibitions, 72-hour employee notice requirement, and prohibition on reverification of employment eligibility impeded federal immigration enforcement objectives. Ultimately, the court enjoined the access and reverification portions of AB 450, but upheld the employee notice requirements.

At the outset of its order on the DOJ’s motion, the court acknowledged the complicated interplay between state and federal laws, stating that “both the National and State Governments have elements of sovereignty the other is bound to respect.” With respect to “the subject of immigration and the status of aliens,” the court wrote that the federal government’s broad power is “undisputed,” but at the same time acknowledged that not “every state law which in any way deals with aliens and immigration” is pre-empted by the United States government’s “constitutional power.”

Prohibition on Voluntary Consent to Access Enjoined. The court enjoined this provision, finding aspects of the law prohibiting voluntary consent to access nonpublic work areas and employment records “troubling due to the precarious situation in which it places employers.” Because AB 450 “imposes significant and escalating fines” on employers choosing to allow federal immigration enforcement agents to enter nonpublic work areas or access documents, the court enjoined enforcement of the act’s access provisions. The court relied on the intergovernmental immunity doctrine, which prohibits states from regulating the United States government directly or discriminating against those with whom the federal government deals.

Notice to Employees Requirement Upheld. The court upheld the employee notice requirement, stating that it did not impede federal immigration law since it merely extends to employees a pre-existing notice requirement that the federal government give employers three business days’ notice before an I-9 inspection. The court found “no indication – express or implied – that Congress intended for employees to be kept in the dark.” Further, the court noted that the California law’s notice provisions did not violate the intergovernmental immunity doctrine since “[a]n employer is not punished for its choice to work with the [federal government], but for its failure to communicate with its employees.”

Prohibition on Reverification Enjoined. The court enjoined AB 450’s provision prohibiting employers from reverifying an employee’s employment eligibility finding that it impeded the Congressional intent underlying the Immigration Reform and Control Act (IRCA). The court specifically noted that IRCA provides for criminal liability when an employer “knowingly” employs an immigrant who is unauthorized to work, and AB 450 could potentially prevent an employer from confirming a suspicion that an employee may not legally work in the United States.

In conclusion, the court pleaded with the federal executive and legislative branches to set aside partisan issues and work to create meaningful immigration reform:

As noted in the Introduction to this Order, this case is about the proper application of constitutional principles to a specific factual situation. The Court reached its decision only after a careful and considered application of legal precedent. The Court did so without concern for any possible political consequences. It is a luxury, of course, that members of the other two branches of government do not share. But if there is going to be a long-term solution to the problems our country faces with respect to immigration policy, it can only come from our legislative and executive branches. It cannot and will not come from piecemeal opinions issued by the judicial branch. Accordingly, this Court joins the ever-growing chorus of Federal Judges in urging our elected officials to set aside the partisan and polarizing politics dominating the current immigration debate and work in a cooperative and bi-partisan fashion toward drafting and passing legislation that addresses this critical political issue. Our Nation deserves it. Our Constitution demands it.

Employers’ Bottom Line

As the discussion above illustrates, immigration enforcement can involve a complicated interplay between state and federal laws, including their limitations. The Immigrant Worker Protection Act is just one of many laws that can come into play. To effectively navigate the often complex landscape, employers are encouraged to consult with counsel if contacted by an immigration enforcement agency.

In the meantime, as noted in our February 2018 discussion of AB 450, the California Labor Commissioner’s Office has published a template that provides an easy-to-use option for employers to comply with the notice provisions of the Immigrant Worker Protection Act recently upheld by Judge Mendez. That template is available on the California Department of Industrial Relations website at https://www.dir.ca.gov/DLSE/LC_90.2_EE_Notice.pdf (in English) and https://www.dir.ca.gov/DLSE/LC_90.2_EE_Notice_Spanish.pdf (in Spanish).