Employers Being Pulled Into Battle Between California and Federal Government Over Immigration Policy?
It is no secret that California lawmakers and the Trump administration do not agree on immigration policy. With the Trump administration stepping up enforcement efforts against illegal immigration, California is trying to thwart those efforts, including through a new bill that seeks to throw California employers into the crossfire. AB 450 (Chiu) would prohibit California employers from providing federal government enforcement agents access to worksites or to employment records (including I-9 forms) without a judicial warrant or subpoena. The bill would authorize the Labor Commissioner to recover civil penalties of between $10,000-$25,000 for employer violations of these requirements.
The bill would also require employers to provide at least 24 hours' advance written notice to employees and to the Labor Commissioner of impending immigration worksite enforcement actions (audits or inspections of I-9 forms or other employment records, worksite interviews, investigations, and/or raids). The employer also would have to give the Labor Commissioner access to the workplace and allow the Labor Commissioner to conduct its own investigation(s)—including into unrelated labor standards matters. In the event a federal immigration agent appears at the worksite without advance notice, the employer would have to notify the Labor Commissioner immediately and provide the Labor Commissioner access to the worksite. Under the bill, the Labor Commissioner would have the authority to notify affected employees that they have the right to remain silent, the right to speak to a lawyer before answering questions, and the right to speak to his or her foreign consulate. Again, an employer's failure to comply with these notice provisions would subject the employer to fines of between $10,000-$25,000.
The employer's notice obligations would continue after a worksite investigation/audit as well, with the employer being required to notify affected employees of the results of the audit within 24 hours.
Finally, the bill would limit an employer's ability to conduct self-audits related to immigration. The employer would be required to notify the Labor Commissioner (and provide the Labor Commissioner access to the worksite) before conducting a self-audit or inspection of I-9 forms and before checking work authorization documents of a current employee in a manner not required by federal law. The employer of course would be subject to penalties of between $10,000-$25,000 for non-compliance.
The foregoing provisions include an exception for where the employer is “required by federal law” to act in a manner that is contrary to these requirements. Of course, an employer is not going to know what this means or whether this exception applies in a given situation. This is a bad bill for California employers, who should not be at the center of what really is a policy battle between California legislators and the federal government. It is of course still early in the legislative process and it is far from clear that this bill will pass both legislative houses and be signed into law.