On July 5, 2018, U.S. District Judge John Mendez of the Eastern District of California struck down two provisions of AB 450 (United States v. California (No. 218-cv-490-JAM-KJN)). Judge Mendez held that the U.S. government is likely to succeed on the merits in challenging parts of AB 450 that barred employers from voluntarily consenting to federal enforcement agents’ access to nonpublic areas of business, and barred employers from voluntarily allowing immigration agents access to employee records. Further, Judge Mendez struck down the provision prohibiting employers from re-verifying a worker’s employment status, but upheld one part of AB 450, requiring that employers post notice of any inspections of employment eligibility documents.

AB 450 was one of three so-called “sanctuary state” bills California passed last year that the U.S. Department of Justice (“DOJ”) challenged in this case. Also challenged, but upheld for the time being were AB 103, which allows the State attorney general to inspect federal detention facilities, and SB 54, which limits the information that law enforcement officers can share with immigration agents about undocumented persons.

Judge Mendez stated: “this court finds that AB 103, SB 54, and the employee notice provision of AB 450 are permissible exercises of California’s sovereign power. With respect to the other three challenged provisions of AB 450, the court finds that California has impermissibly infringed on the sovereignty of the United States.” The DOJ’s motion for preliminary injunction was therefore denied in part and granted in part.

What This Means for Employers

  • Posting notice of I-9 inspections: Employers continue to be subject to a requirement to post notice before and notify specified employees after an ICE/DHS inspection of I-9 forms or other employment records.
  • Granting worksite access to immigration enforcement agents: The decision temporarily enjoins California from enforcing a provision of AB 450 that prohibits employers from allowing enforcement agencies to enter nonpublic worksite areas without a judicial warrant. For the time being, employers will not be found in violation of State law if they grant access to an immigration enforcement agent who does not have a warrant.
  • Granting immigration enforcement agencies access to employment records: The decision also prohibits the State from enforcing a provision of AB 450 that prohibits employers from allowing immigration enforcement agents to access, obtain or review employee records without a subpoena or judicial warrant. For the time being, employers will not be found in violation of State law if they allow an enforcement agent to access employee records without a subpoena or warrant.
  • Re-verification of employment eligibility: The decision blocks California from imposing penalties on employers for re-verifying work eligibility at a time or in a manner not required by federal law.