The Trump administration continues its focus on worksite enforcement to achieve its immigration policy objectives, a strategy that includes Form I-9 audits and potential worksite raids. Amidst this intensified federal activity, California has established its own critical legal framework, reminding employers of specific state law nuances that significantly impact how they must respond to immigration agency enforcement actions. It is paramount for California employers to grasp these unique requirements to ensure robust state law compliance.
California’s Immigrant Worker Protection Act, known as AB 450, took effect on January 1, 2018, setting forth stringent requirements for California employers in handling U.S. Department of Homeland Security (DHS) worksite enforcement actions. This includes not only requests to access an employer’s worksites and/or employment records but also extends to comprehensive Form I-9 audits, a common tool in federal immigration investigations. This landmark legislation aims to protect employee rights during such encounters.
A core tenet of California law requires an employer to provide written notice to their current employees upon receiving a Notice of Inspection or Form I-9 audit from federal immigration authorities. This crucial notification must be delivered within seventy-two hours of receiving the Notice of Inspection, ensuring it reaches all current employees and, if applicable, their collective bargaining representatives. Furthermore, employees have the right to request and receive a copy of the Notice of Inspection from their employer.
The required employee notice, as detailed in the FAQs jointly published by the California Department of Justice and the DIR, must contain specific information: the name of the immigration agency, the date the employer received the I-9 audit, a clear description of the federal agency inspection, and an accompanying copy of the Notice of Inspection. It is important to note that while a Notice of Inspection is often delivered during a visit from government agents, it can also arrive without a physical visit, with the seventy-two-hour period being triggered solely by the employer’s receipt of the notice, regardless of delivery method. Employers are also clarified that the law is not violated if notice is withheld at the express and specific request of the federal government.
Beyond initial notifications, Section 90.2 of California law mandates that employers must provide results of the Form I-9 audit or inspection of records to “each current affected employee” and, where applicable, to the employee’s exclusive bargaining representative. An “affected employee” is precisely defined as an individual identified in the immigration agency inspection report as potentially lacking work authorization or whose work authorization documents have been flagged for potential deficiencies, underscoring the focus on employee rights.
Another critical aspect of California immigration law is the prohibition against employers providing “voluntary consent” to immigration agents for accessing any nonpublic areas of a place of labor unless presented with a judicial warrant. While employers may escort agents to a nonpublic area where no employees are present for the sole purpose of verifying whether the agent possesses a judicial warrant, no consent to search nonpublic areas should be given during this process, safeguarding employer privacy and state law compliance.
Similarly, California law strictly prohibits employers from providing “voluntary consent” to immigration agents that would permit them to access, review, or obtain the employer’s employee records without a subpoena or a judicial warrant. This provision reinforces the legal boundaries of federal worksite enforcement in California, ensuring that employee data and employer records are protected from unwarranted intrusion, further solidifying the state’s unique approach to immigrant worker protection.
Employers failing to adhere to these stringent notice requirements under California immigration law may face significant financial penalties, ranging from $2,000 to $5,000 for a first violation, and escalating to $5,000 to $10,000 for each subsequent violation. However, Section 90.2 explicitly states that these requirements should not be interpreted to restrict or limit an employer’s compliance with any memorandum of understanding governing the use of the federal E-Verify system, distinguishing between state and federal obligations.
The DIR’s recent reminder and the comprehensive guidance provided in their FAQs are particularly timely, given the heightened federal worksite enforcement efforts under the Trump administration. It is therefore crucial for California employers to fully comprehend these distinct California immigration laws, as they impose additional compliance requirements and carry substantial financial risks for violations, making understanding these nuances vital for ongoing business operations and protecting employee rights.
Leave a Reply