Caught Between a Rock and a Hard Place - AB 450 Imposes New Legal Requirements for Employers During Worksite Immigration Enforcement Actions

On October 5, 2017, Governor Jerry Brown approved AB 450, which imposes several new legal requirements on California employers during immigration worksite enforcement actions.   The California Legislature enacted AB 450 in response to the apparent signals from the federal government that all unauthorized immigrants are enforcement priorities for Immigration and Customs Enforcement (“ICE”).

Effective January 1, 2018, AB 450 prohibits California employers from allowing immigration enforcement agents to enter any nonpublic areas of a workplace without a judicial warrant.  However, an employer may permit an immigration enforcement agent to enter a nonpublic area where employees are not present for the purposes of verifying whether the agent has a judicial warrant.

AB 450 prohibits employers from allowing immigration enforcement agents to access, review or obtain an employer’s employee records without a subpoena or judicial warrant.  The only exception to this requirement is for I-9 Employment Eligibility Verification Form (“I-9 Form”) and other documents for which a Notice of Inspection has been provided to the employer.

The new law requires employers to provide employees notice of certain immigration enforcement actions.   Within 72 hours of receiving a notice of inspection for I-9 Forms or other employment records by an immigration agency, an employer must provide a notice to each current employee and their authorized representative, if one exists.  Within 72 hours of receiving the notice that provides the results of the inspection, an employer must provide each current “affected employee” and their representative, if one exists, a copy of the written results and the obligations of the employer and the affected employee arising from the results of the inspection.  An “affected employee” is an employee who may lack work authorization or an employee whose work authorization documents have been identified as deficient.

Violations of AB 450 subject employers to a civil penalty from two thousand dollars ($2,000) to five thousand dollars ($5,000) for a first violation and from five thousand dollars ($5,000) to ten thousand dollars ($10,000) for each subsequent violation.

Employers are also prohibited, unless otherwise required by federal law, from reverifying employment eligibility of a current employee at a time or manner not required by federal law (for example, voluntary self-audits).

Before AB 450 goes into effect on January 1, 2018, employers should inform their managers and supervisors on how to comply with these new requirements and, if necessary, to implement procedures for responding to immigration worksite enforcement actions.

For more information concerning AB 450, please contact one of the authors or attorneys in the Private Labor and Employment Group.

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