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by Jennifer Brown Shaw and Justin R. Paddock | The Daily Recorder | January 23, 2018

It just became more difficult for California employers to comply with federal immigration inspections. The California Legislature and the Governor enacted AB 450 in response to recent federal actions related to illegal immigration. Effective January 1, 2018, employers are subject to new state law requirements related to federal officials’ access to employees and documents. Employers must carefully walk the line between complying with federal immigration law, and state law prohibiting “too much” cooperation.

Non-Public Areas

Federal immigration enforcement officers (“officers”) are prohibited by regulation from entering “non-public areas of a business” without a warrant, except under limited circumstances. Under federal law, however, an employer can consent to an inspection of a non-public area without a warrant from a court. Under AB 450, though, consenting to federal officers’ inspection of non-public areas of a business without a warrant is unlawful.

The conflict between federal and state law may lead to uncomfortable interactions or confrontations with federal immigration officials, as well as potential liability under federal law, depending on the circumstances. For example, immigration officers can obtain administrative warrants from officials within their agencies (I-200 or I-205 forms) and may seek access to non-public areas with them. But this warrant is insufficient justification for allowing access under AB 450 because it is not issued by a court. Employers therefore must understand the difference between an “administrative” and “judicial” warrant, as must the federal official.

Another potential area for dispute is: what is a “public” v. “non-public” area? Employers should consider (1) if there are locations clearly marked as “employees only” or “private”; (2) if the public can access a restroom that is in an area commonly considered “private;” and (3) if tours are allowed in parts of facilities.

AB 450 does allow employers to escort officers to a non-public area where no employees are present to review the officer’s documents and discuss his or her requests. Again, employers may inadvertently violate AB 450 if employees are present. Employers fearful of AB 450, or who misunderstand this exception, could become embroiled in a dispute with the immigration officer.

Employers should designate employees that will act as liaisons with immigration officers. These employees must receive training on the proper procedures and AB 450’s prohibitions and exceptions. Key concepts will include the ability to ask for and recognize a judicial warrant, to know the difference between public and non-public areas, and how to communicate with the federal officer without violating federal immigration or other laws. Compliance likely will require consultation with an immigration compliance attorney and advance planning.

Document Review

Under existing federal law, officers must provide employers with a three-day notice to search employee I-9 records. If officers wish to inspect other records, the notice may be accompanied by an administrative subpoena. Under AB 450, employers must not allow officers to inspect records, other than I-9s, without this administrative subpoena or a judicial warrant. Here, again, employers must be cautious and limit officers’ access to these records.

AB 450 imposes new administrative burdens. Employers must tell their current employees about a federal immigration inspection notice within three days of receiving it. Employers must communicate this message in “the language the employer normally uses to communicate employment-related information to the employee.” The information should also be sent to the employee’s union, if any, or other representative. The notice must include the name of immigration agency, what documents officers plan to inspect, the date the employer received notice of inspection, the “nature of the inspection to the extent known,” and a copy of the notice the employer received. The Labor Commissioner must develop a template for employers by July 1, 2018.

After an inspection, officers usually give employers one of several notices: a notice of complete compliance, a notice of technical or procedural failures (similar to a “fix-it ticket”), a Notice of Suspected Documents (certain employees may not have valid work authorization), or a Notice of Intent to Fine.

Employers must also provide “affected employees” and their representatives (i.e., union) with copies of the inspection results. An “affected employee” is an employee “identified by the immigration agency inspection results to be an employee that may lack work authorization” or their authorization has deficiencies.

Employers should prepare in advance notification procedures for any notices they receive, and make sure that officer liaisons can identify administrative subpoenas.

Do Not Re-Verify Employment Eligibility

Unless required by federal law (e.g., employees holding certain work authorization visas periodically must have their status re-verified) employers should not re-verify a current employee’s eligibility. AB 450 prohibits unnecessary re-verification. Employers should consult an immigration compliance attorney before conducting an internal I-9 audit.

Civil Penalties

The Labor Commissioner or the California Attorney General can recover civil penalties for violations of AB 450, ranging from $2,000 to $10,000, per violation. One silver lining for the new state law — employers are not subject to private rights of action under AB 450.

California recognizes that employers must comply with federal immigration law and officials discharging their duties. But California’s policy is that employers must do no more than federal law specifically requires. Employers therefore must comply with two sets of laws in conflict, or face potential liability. Therefore, it is important for employers to consult with immigration counsel about how to proceed under AB 450.

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