California seems to be at odds with the Trump Administration over many subjects, including the legalization of marijuana, the expansion of off-shore drilling, the elimination of state and local tax deductions, and immigration.
The most recent clash over immigration began with the passage in October of “The California Values Act” (CVA) (SB54) and the Immigrant Worker Protection Act (IWPA) (AB450). California essentially became a “sanctuary” state. It also began placing affirmative obligations on employers to provide employees with notification regarding possible inspection or enforcement actions. Acting ICE Director, Thomas Homan, threatened California with targeted ICE raids.
Now that the CVA and IWPA are in effect, Homan told Fox News, “California better hold on tight. . . . They are about to see a lot more special agents, a lot more deportation officers.”
Given the planned uptick in inspections, California employers (both public and private) should be aware of the warrant and subpoena requirements of the IWPA, as well as the notice requirements in the California Labor Code, Section 90.2.
As far as notice is concerned, employers must:
- Provide employees and their authorized representatives with a public notice, including a copy of the Notice of Inspection of I-9 Employment Eligibility Verification Forms itself, within 72 hours of receiving notice of an upcoming federal inspection. The California Department of Labor has developed a template for this Notice to Employees that can be found at: http://www.dir.ca.gov/DLSE/LC_90.2_EE_Notice.pdf
- Upon reasonable request, provide an “affected employee” with a copy of the Notice of Inspection.
- Provide each “affected employee” and their authorized representatives within 72 hours of receipt:
- A copy of the written immigration agency notice that provides the results of the inspection and written notice of the obligations of the employer and the affected employee arising from the results of the inspection;
- The notice should be delivered by hand at the workplace, if possible, and if not possible, by mail and email, if the employee’s email is known, and to the employee’s authorized representative. The notice must contain:
- Description of all deficiencies related to that employee;
- Time period for correcting any potential deficiencies;
- Time and date of any meeting with the employer to correct any identified deficiencies; and
- Notice that the employee has the right to representation during any scheduled meeting with the employer.
According to Labor Code Section 90.2, an “affected employee” is one identified by the immigration agency inspection results to be an employee who may lack work authorization, or an employee whose work authorization documents have been identified to have deficiencies.
Failure to provide these notices subjects employers to a civil penalty of $2,000 to $5,000 for the first violation and $5,000 to $10,000 for each subsequent violation.