On April 18, 2019, the Ninth Circuit Court of Appeals largely upheld a lower court’s ruling refusing to block three California “sanctuary” immigration laws. The Trump administration’s lawsuit challenging those laws will continue to proceed in district court, although the Ninth Circuit Court of Appeals has concluded the administration’s continued challenge to two of California’s sanctuary laws, including the Immigrant Worker Protection Act, is unlikely to succeed. California employers should therefore continue to work with employment/immigration counsel regarding their obligations under the Immigrant Worker Protection Act.
What are California’s “sanctuary” immigration laws?
In 2017, California passed three immigration laws, all of which went into effect on January 1, 2018. The California Values Act (SB 54) limits state and local law enforcement’s “discretion to cooperate with [federal] immigration authorities” or inquire into an individual’s immigration status, among other things, while a second law (AB 103) allows the California Attorney General to inspect immigration detention facilities within the state.
Of importance to California employers, the Immigrant Worker Protection Act (AB 450) prohibited California employers, both public and private, from:
- Voluntarily consenting to allow an immigration enforcement agent to enter any nonpublic areas of the workplace without a judicial warrant.
- Voluntarily consenting to allow an immigration enforcement agent to access, review or obtain employee records without a subpoena or judicial warrant, unless the requisite three days’ notice (Notice of Inspection) of an I-9 inspection had been provided to the employer.
If an employer received a Notice of Inspection, the Immigrant Worker Protection Act requires the employer to 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. 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 and (3) the time and date of any meeting with the employer to correct deficiencies. The employer must also inform the affected employee of his/her right to representation during any meeting with the employer. Finally, the Immigrant Worker Protection Act prohibits an employer from reverifying the employment eligibility of a current employee in a manner inconsistent with federal law.
What are the implications of the Ninth Circuit Court of Appeals’ decision?
In largely upholding the July 5, 2018 decision of a California federal district court judge, the Ninth Circuit Court of Appeals found that the Immigrant Worker Protection Act’s requirement to give notice to employees of impending I-9 inspections, and to share the results of such inspections with an “affected employee,” were neither preempted by federal law nor impermissibly interfere with federal enforcement activity. As such, California employers must continue to comply with the Immigrant Worker Protection Act’s notice requirements.
However, the district court’s decision to block portions of the Immigrant Worker Protection 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, will remain in effect.
With regard to SB 54, the Ninth Circuit Court of Appeals found that limiting local and state law enforcement’s discretion to cooperate with federal immigration authorities does not impede federal immigration enforcement and, even if it did, it would not be unlawful under the 10th Amendment, which prohibits the federal government from requiring the states to cooperate with federal immigration enforcement. The Ninth Circuit Court of Appeals did, however, take issue with AB 103’s reporting requirements regarding the apprehension and custody of immigrants, which it found wrongfully burdened the federal government in its enforcement actions.