Protections for immigration worksite enforcement actions

2017 LEGISLATIVE SESSION

Gov. Jerry Brown recently signed Assembly Bill 450 dealing with immigration worksite enforcement actions.

This bill, signed Oct. 4, added Government Code Section 7285.1 to prohibit an employer (or a person acting on the employer's behalf), "except as otherwise required by federal law," from providing "voluntary consent" to an immigration enforcement agent to enter any nonpublic areas of a place of labor. However, this prohibition does not apply if the immigration enforcement agent provides a judicial warrant. These provisions are in contained in Section 7285.1(a).

Any employer who violates this new section will be assessed a civil penalty of $2,000 to $5,000 for a first violation and $5,000 to $10,000 for each subsequent violation. If a court finds that an immigration enforcement agent was permitted to enter a nonpublic area of a place of labor without the employer's consent, then this civil penalty is not assessed. This is contained in Section 7285.1(b).

There is also an exception if the employer (or agent) takes the immigration enforcement agent to a nonpublic area where employees are not present for verifying whether the immigration enforcement agent has a judicial warrant. But consent to search nonpublic areas cannot be given in that instance. This is contained in Section 7285.1(c).

The California labor commissioner and the California attorney general have "exclusive authority" to enforce this new section, and they must do so through civil action. Any civil penalties recovered by them are deposited in a state fund. These provisions are contained in Section 7285.1(d). The new law specifies that his section applies to both public and private employers. This is contained in Section 7285.1(e).

In addition, this bill added Section 7285.2 to the Government Code to prohibit an employer (or a person acting on the employer's behalf), "except as otherwise required by federal law," from providing voluntary consent to an immigration enforcement agent to "access, review, or obtain the employer's employee records without a subpoena or judicial warrant." An employer (or agent) may challenge the validity of either document in federal court. These provisions are contained in Section 7285.2(a)(1).

However, this prohibition does not apply to "I-9 Employment Eligibility Verification forms and other documents for which a Notice of Inspection has been provided to the employer." This is contained in Section 7285.2(a)(2).

Any employer who violates this new section will be assessed a civil penalty of $2,000 to $5,000 for a first violation and $5,000 to $10,000 for each subsequent violation. If a court finds that an immigration enforcement agent was permitted to enter access, review or obtain the employee records without the employer's consent, then this civil penalty is not assessed. This is contained in Section 7285.2(b).

The California labor commissioner and the California attorney general have "exclusive authority" to enforce this new section, and they must do so through civil action. Any civil penalties recovered by them are deposited in a state fund. These provisions are contained in Section 7285.2(c). The new law specifies that his section applies to both public and private employers. This is contained in Section 7285.1(d).

This new law also added Section 7285.3 to the Government Code to provide that "nothing in this chapter shall be interpreted, construed or applied" to either restrict or limit an employer's compliance with an agreement governing the use of the federal E-Verify system.

This new law added Section 90.2 to the Labor Code to require an employer, "except as otherwise required by federal law," to provide a notice to each current employee of any inspections of I-9 Employment Eligibility Verification forms or other employment records conducted by an immigration agency. This notice (including specified information) must be posted in the same language that the employer normally uses to communicate employment-related information to employees, and the notice must be provided without 72 hours of receiving notice of that inspection. In addition, similar written notice must be given within 72 hours to an employee's authorized representative. These provisions are contained in Section 90.2(a)(1).

On or before July 1, 2018, the labor commissioner is required to develop a template posting that employers may use to comply with this notice requirement. This is contained in Section 90.2(a)(2). An affected employee must be provided a copy of the Notice of Inspection if a reasonable request is made of the employer. This is contained in Section 90.2(a)(3).

In addition, an employer, "except as otherwise required by federal law," must provide a copy to each current, affected employee (and his or her authorized representative) of the written immigration agency notice that provides the results of the inspection of the forms and records. This must be done within 72 hours of its receipt. This information must include any "written notice of the obligations of the employer and the affected employee arising from the results of the inspection." This notice must contain specified information and must be delivered by hand at the workplace, or by mail and email if that is not possible. These provisions are contained in Section 90.2(b)(1). An "affected employee" is defined as an employee identified by the immigrant agency inspection results to be someone who may lack work authorization or whose paperwork is identified as having deficiencies. This is contained in Section 90.2(b)(2).

Any employer who violates this new section will be assessed a civil penalty of $2,000 to $5,000 for a first violation and $5,000 to $10,000 for each subsequent violation. If the federal government "expressly and specifically directs or requests" that this notice is not provided to an employee, then this civil penalty is not assessed. Only the labor commissioner recovers this penalty. This is contained in Section 90.2(c).

An "employee's authorized representative" is defined as an exclusive collective bargaining representative. This is contained in Section 90.2(d). The new law specifies that his section applies to both public and private employers. This is contained in Section 7285.1(e).

Here again, "nothing in this chapter shall be interpreted, construed or applied" to either restrict or limit an employer's compliance with an agreement governing the use of the federal E-Verify system. This is contained in Section 90.2(f).

This new law added Section 1019.2 to the Labor Code to prohibit either a public or a private employer, "except as otherwise required by federal law," from reverifying the employment eligibility of a current employee at a time or in a manner not required by federal law. This is contained in Section 1019.2(a).

Any employer who violates this new section will be assessed a civil penalty up to $10,000. Only the labor commissioner recovers this penalty. This is contained in Sections 1019.2(b)(1). Here again, "nothing in this chapter shall be interpreted, construed or applied" to either restrict or limit an employer's compliance with an agreement governing the use of the federal E-Verify system. This is contained in Section 1019.2(c).

As one might expect, this bill created a fair amount of debate during the just-concluded Legislative Session. Most of the business community went neutral in the end after the author took numerous amendments to deal with employer concerns. This bill was a high priority for its sponsor, the Service Employees International Union.