On January 1, 2018, the new Immigrant Worker Protection Act or AB 450, became effective. The law is designed to protect an estimated three million plus undocumented Californian employees, of whom over half are active in the workforce, from Federal immigration enforcement through workplace raids.
Here are six things that California employers, both private and public, need to know about the new law:
1. Employers may not voluntarily consent to an immigration enforcement agent entering any non-public areas at a place of labor. This does not apply if the agent provides a “judicial warrant.”
2. Employers may not grant voluntary consent to an immigration enforcement agent to access, review, or obtain employee records without a “subpoena or judicial warrant” (with certain exceptions, such as if an immigration enforcement agent issues a Notice of Inspection (NOI) of I-9s/other records needing to be maintained under federal immigration regulations).
3. Employer must give written notice to employees (plus the authorized representative, i.e. collective bargaining representative, if any, of any immigration review of employment records, e.g. I-9s, within 72 hours of receiving the request e.g. the union, if any.
The notice must:
2. Employers may not grant voluntary consent to an immigration enforcement agent to access, review, or obtain employee records without a “subpoena or judicial warrant” (with certain exceptions, such as if an immigration enforcement agent issues a Notice of Inspection (NOI) of I-9s/other records needing to be maintained under federal immigration regulations).
3. Employer must give written notice to employees (plus the authorized representative, i.e. collective bargaining representative, if any, of any immigration review of employment records, e.g. I-9s, within 72 hours of receiving the request e.g. the union, if any.
The notice must:
| a. Be posted in the language the employer normally uses to communicate with employee; b. Include the name of the immigration agency conducting the inspection; c. Include the date the employer received the notice; d. Explain the nature of inspection (to the extent known); e. Include a copy of the Notice. |
4. Employers cannot reverify the employment eligibility of a current employee, except as otherwise required by federal law.
5. Employers must provide a copy of the written immigration agency notice within 72 hours of the employer’s receipt of the results of the inspection (the “Notice of Suspect Documents” (“NSD”)) to certain “affected employees” (employees identified by the immigration agency as ones who may lack work authorization), in addition to a written notice of the obligations of the employer and the affected employee arising from the results. This notice must be hand-delivered if possible, otherwise by mail and email, and should contain:
5. Employers must provide a copy of the written immigration agency notice within 72 hours of the employer’s receipt of the results of the inspection (the “Notice of Suspect Documents” (“NSD”)) to certain “affected employees” (employees identified by the immigration agency as ones who may lack work authorization), in addition to a written notice of the obligations of the employer and the affected employee arising from the results. This notice must be hand-delivered if possible, otherwise by mail and email, and should contain:
| a. A description of any deficiencies identified in the notice; b. The time period for correcting deficiencies; c. The time and date of any meeting with the employer to correct deficiencies; d. Notice that the employee has the right to representation during any meeting scheduled with the employer. |
6. Employers can face civil fines of up to $5,000 for a first violation and up to $10,000 for subsequent violations, if they fail to provide the required notices.
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