Unless otherwise required by federal law, California A.B. 450 will prohibit employers, and anyone acting on their behalf, from voluntarily consenting to an immigration enforcement agent entering any nonpublic areas of a workplace, unless the agent provides a judicial warrant. Employers can take an immigration agent to a nonpublic area to verify whether the agent has a judicial warrant, provided no employees are present in the area and no consent to search nonpublic areas is given in the process.
The new law also prohibits employers and anyone acting on their behalf from providing voluntary consent to an immigration enforcement agent to access, review, or obtain employee records without a subpoena or judicial warrant. This section of the law does not prohibit an employer from challenging the validity of a subpoena or judicial warrant in a federal court, nor does it apply to inspection of I-9 records or other documents for which the employer has received a Notice of Inspection.
The bill imposes several notification requirements on employers:
- Within 72 hours of receiving a Notice of Inspection from an immigration agency to inspect I-9 forms or other employment records, the employer must post a workplace notice to employees and provide written notice to a collective bargaining representative. The Labor Commissioner will develop a template that employers can use for this purpose. Also, upon reasonable request, an employer must provide an affected employee a copy of an I-9 Notice of Inspection.
- Within 72 hours of receiving an immigration agency notice that provides results of the I-9 or records inspection, an employer must provide each current affected employee and the collective bargaining representative a copy of the notice. Also the employer must provide to each “affected employee” and their representative written notice of the employer and employee’s obligations arising from the inspection results. An “affected employee” is one identified by the inspection results as lacking work authorization or whose work authorization documents have been identified by the agency inspection to have deficiencies. The notice must relate to the affected employee only and must be delivered by hand at the workplace if possible, or by mail and email if hand delivery is not possible.
Finally, employers may not reverify employment eligibility of a current employee at a time or in a manner not required by federal law. This law does not restrict an employer’s compliance with a memorandum of understanding regarding the use of E-Verify.
Violations of the various provisions of this new law are subject to civil penalty fines (in the $2,000-10,000 range, per violation!).
How to Prepare
-Ensure that management knows the new law prohibiting them from granting voluntary access and understands proper procedures if immigration authorities visit or request an inspection.
-Prepare to promptly comply with the new posting and notice requirements for when you receive a Notice of Inspection or inspection results.
-Review I-9 processes to ensure that they are in full compliance with the law.
-Do not engage in reverification practices that are not strictly required by federal law.