2018 Brings New Rules for Immigration Worksite Enforcement Actions

Chris Micheli
Attorney and Lobbyist at the Sacramento government relations firm of Aprea & Micheli, Inc.

Governor Jerry Brown signed AB 450 (Chiu – San Francisco) on October 4, 2017 as Chapter 492 dealing with immigration worksite enforcement actions. Effective January 1, 2018, California employers need to be aware of the numerous provisions of this new law.

This bill adds Government Code Section 7285.1 to prohibit an employer (or a person acting on the employer’s behalf), “except as otherwise required by federal law,” from providing “voluntary consent” to an immigration enforcement agent to enter any nonpublic areas of a place of labor. However, this prohibition does not apply if the immigration enforcement agent provides a judicial warrant.

Any employer who violates this new section will be assessed a civil penalty of $2,000 to $5,000 for a first violation and $5,000 to $10,000 for each subsequent violation. If a court finds that an immigration enforcement agent was permitted to enter a nonpublic area of a place of labor without the employer’s consent, then this civil penalty is not assessed.

The California Labor Commissioner and the California Attorney General have “exclusive authority” to enforce this new section of the law, and they must do so through civil action. There is not a private right of action. Any civil penalties recovered by the Commissioner or AG are deposited in a state fund. The new law specifies that his section applies to both public and private employers.

In addition, this bill adds Section 7285.2 to the Government Code to prohibit an employer (or a person acting on the employer’s behalf), “except as otherwise required by federal law,” from providing voluntary consent to an immigration enforcement agent to “access, review, or obtain the employer’s employee records without a subpoena or judicial warrant.” An employer (or agent) may challenge the validity of either document in federal court.

However, this prohibition does not apply to “I-9 Employment Eligibility Verification forms and other documents for which a Notice of Inspection has been provided to the employer.” Any employer who violates this new section will be assessed a civil penalty of $2,000 to $5,000 for a first violation and $5,000 to $10,000 for each subsequent violation.

This new law adds Section 90.2 to the Labor Code to require an employer, “except as otherwise required by federal law,” to provide a notice to each current employee of any inspections of I-9 Employment Eligibility Verification forms or other employment records conducted by an immigration agency. This notice (including specified information) must be posted in the same language that the employer normally uses to communicate employment-related information to employees, and the notice must be provided without 72 hours of receiving notice of that inspection. In addition, similar written notice must be given within 72 hours to an employee’s authorized representative.

This new law adds Section 1019.2 to the Labor Code to prohibit either a public or a private employer, “except as otherwise required by federal law,” from reverifying the employment eligibility of a current employee at a time or in a manner not required by federal law.

As one might expect, this bill created a fair amount of debate during the just-concluded Legislative Session. Most of the business community changed their position to neutral in the end after the author took numerous amendments to deal with employer concerns. This bill was a high priority for its sponsor, the Service Employees International Union.

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