In the past year, many businesses have observed increased efforts by authorities to enforce immigration laws and stop work by undocumented employees. In many cases, agents from Immigration and Customs Enforcement (ICE) have appeared without notice at a worksite and sought to inspect records regarding employees. Most employers have not experienced such visits in the past and are not aware of their rights and obligations.
In some cases, ICE agents arrive with a subpoena or a search warrant, but in many cases, they do not present any documents that compel a response from the employer. In such instances, California state law now dictates the manner in which employers must respond.
If ICE asks to review employee records without a subpoena or judicial warrant, the law now provides that an employer may not grant access to the records, and also confirms the employer’s right to challenge a subpoena or judicial warrant in federal district court. The new law, Assembly Bill 450, also prohibits employers from allowing immigration enforcement agents to enter any non-public area of the worksite without a warrant. Employers may, however, take the ICE agent to a private area to verify whether the agent has a valid judicial warrant, provided no consent to search non-public areas is given in the process.
If ICE seeks to conduct an inspection of I-9 documentation, AB 450 requires the employer to post a notice of the inspection within 72 hours of receiving notice from ICE. Then, within 72 hours of receiving the inspection results, the employer must provide each “affected employee” with the results and a written notice of the obligations arising from the inspection for both the employer and employee. An “affected employee” is one identified by the inspection as potentially lacking work authorization or having deficient documents.
Employers that violate the law are subject to civil penalties of $2,000 to $5,000 for a first violation and $5,000 to $10,000 for each subsequent violation. Exclusive authority to enforce the new law is vested with the Attorney General and the Labor Commissioner, so employees cannot sue on their own behalf for violations.
Tension has long existed between federal law, which requires employers to verify a worker’s identity and eligibility to work in the United States through the federal I-9 form, and state law, which protects a worker from discrimination or retaliation due to their actual or perceived immigration status or country of origin. AB 450 increases this tension by dictating how employers must respond when ICE conducts a workplace raid without a subpoena or warrant.
In light of the Trump administration’s announced intent to take aggressive action against illegal immigrants, which has already been reflected in a number of high-profile worksite raids, AB 450 places California employers in a difficult position when responding to any ICE demands. On the one hand, employers should not obstruct an otherwise lawful enforcement action by a federal agency. On the other hand, they must be aware of and comply with their obligations under AB 450 or risk civil penalties under state law.
What Should Employers Do Now
- Develop a protocol for responding to ICE agents who appear at the worksite.
- Train the employees most likely to be the first responders to any ICE agents who appear at the worksite.
- Designate a management or human resource official responsible for responding to any notices of inspection of I-9 forms.
Prepare a template for posting notice of any I-9 inspections; the Labor Commissioner has been directed to prepare a model template by July 1, 2018.