New California Immigration Obligations Facing Employers in 2018 

Learned about the new obligations starting january 1, 2018.

 

 Governor Brown recently signed six new statutory obligations into law that took effect on January 1st, 2018. AB 450 was among the new obligations, signed on October 5th, 2017, and among other things, it prohibits employers from voluntary consenting to allowing immigration officials to access non-public areas of the workplace without a judicial warrant. It also requires employers to provide their workers with notice of certain immigration enforcement actions within a specified number of hours. New statutory penalties will be enforced for violations of the law.

Immigration Worker Protection Act (AB 450)

AB 450 was jointly sponsored by the California Labor Federation and SEIU, and was entitled the “Immigrant Worker Protection Act”. The author of the bill, Assembly member David Chiu (D-San Francisco), made this statement when introducing the bill:

“Trump’s threats of massive deportations are spreading fear among California workers, families, and employers.  AB 450 declares California’s determination to protect our economy and the people who are working hard to contribute to our communities and raise their families in dignity.  I’m proud to author this legislation which goes beyond California’s existing defense of immigrants to offer new legal protections for individuals in our workplaces.  At the same time, AB 450 offers employers clarity about what to do when ICE agents target their places of business with indiscriminate raids.”

Under the former federal immigration law, when immigration authorities (or ICE) arrived at a workplace to engage in enforcement activity, an employer would be able to allow authorities to access non-public portions of the workplace by voluntary consent.

Now, AB 450 removes the employer’s ability to “voluntarily consent” to ICE access. Employers (or persons acting on behalf of employers) are prohibited from providing voluntary consent for access and now are required to insist on a judicial warrant.

AB 450 has also imposed several new notification requirements on California employers. Firstly, employers are required to provide current employees a timely notice of any inspection of I-9 forms or other employment records (within 72 hours of receiving notice). The Labor Commissioner should have a template that employers may use for this by July 1st, 2018. Secondly, upon reasonable request, employers must provide and affected employee with a copy of Notice of Inspection of I-9 forms. Thirdly, employers must provide affected employees with a copy of the notice that provides the inspection results within 72 hours of receiving it. The notice should be delivered by hand at the workplace if possible, or by mail and email if that is not possible.

AB 450 also prohibits an employer from re-verifying the employment eligibility of a current employee at a time or in a manner not required by federal law. Violation of this prohibition can result in penalties of up to $10,000 for each violation.

Penalties for Violations of AB 450

An employer who violates AB 450 is subject to up to $5,000 in civil penalties for the first violation and up to $10,000 for each subsequent violation. The enforcement of these penalties is under the exclusive authority of the Labor Commissioner or the Attorney General. Penalties recovered are deposited in the Labor Enforcement and Compliance Fund.

Employer Concerns

Employers have expressed concerns with having to “stand up” to ICE and with what ICE’s reactions will be. Employers will need to train staff on how to properly react to situations that may arise or face the risk of penalties.

Next Steps

California employers should review their policies and procedures to verify compliance with the law and train existing employees on how to handle AB 450’s new requirements for judicial warrants and subpoenas as well as prompt employee notifications within the applicable timelines.

DOWNLOAD NEW CALIFORNIA IMMIGRATION OBLIGATIONS FACING EMPLOYERS IN 2018

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*The information presented in this article does not constitute legal advice and is not intended to create an attorney-client relationship.  The information presented in this article is not tax advice and you should consult a CPA or other qualified accounting and tax professional to discuss your specific circumstances.

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