California’s Immigrant Worker Protection Act becomes effective January 1, 2018

December 20, 2017

Immigration Law Alert

Author(s): Jason Gerrol

California’s Immigrant Worker Protection Act will impose various requirements on California employers with regard to restricting access of federal immigration agencies to nonpublic work areas and I-9 inspections, among other requirements.

Update: October 22, 2018

On July 5, 2018, a California federal district court judge upheld many of California’s “sanctuary” protections, but granted the Department of Justice’s request for a preliminary injunction against those portions of the Act that prohibit employers from voluntarily consenting to an immigration enforcement agent’s request to enter any nonpublic areas of the workplace or to review employee records without a judicial warrant, as well as the provisions prohibiting the reverifying of work eligibility unless specifically required by federal law. The court did not enjoin the Act’s requirement to notify employees and authorized union representative(s) of any impending I-9 inspection. California employers should note that the court’s injunction is only in place while litigation proceeds on the matter, and should consult with experienced immigration and/or employment counsel regarding their ongoing obligations under the Act.

Revised February 23, 2018

In the latest attempt by California legislators to counteract the immigration policies of the Trump administration, a series of state immigration laws will go into effect January 1, 2018, including the Immigrant Worker Protection Act (“the Act”), which will impose certain obligations on California employers where a federal immigration enforcement agent, specifically U.S. Immigration and Customs Enforcement (ICE), seeks access to nonpublic areas of the workplace or to review employee records including I-9 Employment Eligibility Verification forms.

What does the Act require of California employers?

Effective January 1, 2018, California employers, both public and private, will be prohibited from:

  1. Voluntarily consenting to allow an immigration enforcement agent to enter any nonpublic areas of the workplace without a judicial warrant.
  2. Voluntarily consenting to allow an immigration enforcement agent to access, review or obtain employee records without a subpoena or judicial warrant. Importantly, this provision does not apply to I-9 Employment Eligibility Verification forms where the requisite three days’ notice (Notice of Inspection) has been provided to the employer.

If an employer receives a Notice of Inspection, an employer must provide notice of the impending I-9 inspection to each current employee as well as any authorized union representative(s) within 72 hours of receiving the Notice of Inspection. The Act indicates a template notice will be made available to employers on or before July 1, 2018, but in the meantime, the Act outlines the specific information that must be included in the notice to employees.

UPDATE:  In February 2018, the California Labor Commissioner’s Office issued a template notice for employers to use in the event of an inspection.

If during the course of an I-9 inspection by a federal immigration agency, an employee is identified as either lacking work authorization or possessing deficient work authorization documents, the employer must deliver to each “affected employee” an individual notice describing (1) the deficiencies identified during the course of the inspection, (2) the time period for correcting any potential deficiencies, (3) the time and date of any meeting with the employer to correct deficiencies and (4) informing the affected employee of his/her right to representation during any meeting with the employer.

Finally, the Act prohibits an employer from reverifying the employment eligibility of a current employee in a manner inconsistent with federal law.

What are the penalties for noncompliance?

Employers who voluntarily provide immigration enforcement agents with access to nonpublic areas of the workplace, or who fail to comply with the above notice requirements, may be subject to a civil penalty of between $2,000 and $5,000 for a first violation, and between $5,000 and $10,000 for each subsequent violation. The penalty will not apply where access was obtained without the consent of the employer or other person in control of the workplace, or where the required notice was not provided at the express and specific direction of the federal government.

The Act does not preclude an employer from taking an immigration enforcement agent to a nonpublic area for the purpose of verifying whether a judicial warrant has been obtained, provided that no consent to search nonpublic areas is given in the process.

Does the Act interfere with the use of E-Verify?

No. The Act states that “nothing…shall be interpreted, construed, or applied to restrict or limit an employer’s compliance with a memorandum of understanding governing the use of the federal E-Verify system.”

Does the Act apply to inspections of H-1B Public Access Files and similar inspections?

The Act makes broad references to “immigration worksite enforcement actions” and “immigration enforcement agent” without identifying what or who these terms reference. Nevertheless, while the scope of the Act is not entirely clear, its history and context clearly contemplate the large-scale worksite raids conducted by ICE.

There are other instances where an employer may encounter an immigration-related inspection. For example, employers who sponsor H-1B visa workers must maintain a Public Access File, and make that file available for inspection by the U.S. Department of Labor. Such inspections, which are mandated by federal law and form part of an employer’s H-1B visa compliance obligations, would appear to fall outside the scope of the Act.

The foregoing has been prepared for the general information of clients and friends of the firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel. If you have any questions or require any further information regarding these or other related matters, please contact your regular Nixon Peabody LLP representative. This material may be considered advertising under certain rules of professional conduct.

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