ICE Expects Increase in I-9 Audits
Derek Benner, acting executive director for ICE’s Homeland Security Investigations (HSI) told the The Associated Press that in addition to an increase in Form I-9 audits this summer, ICE will continue to focus on criminal cases. This increase in I-9 audits by ICE will likely test the newly enacted requirements included in AB 450, the Immigrant Worker Protection Act. AB 450, which became effective January 1, 2018. AB 450 imposes various obligations and restrictions on California employers with regard to worksite inspections by immigration enforcement agents involved in inspections of I-9 Verification Forms or other employment records. The following is a summary of some of the requirements.
The Employer Must Post Notice of the Inspection
Typically, ICE starts the investigative process by serving a Notice of Inspection to the employer, giving the employer 72 hours to provide the I-9 Employment Verification forms and other documents that are requested in the Notice of Inspection. AB 450 requires employers to post a notice informing employees within 72 hours of receiving a Notice of Inspection for I-9 Forms by an immigration agency.
The notice the employer must post needs to include the following information:
- The name of the immigration agency conducting the inspections of I-9 Employment Eligibility Verification forms or other employment records.
- The date that the employer received notice of the inspection.
- The nature of the inspection to the extent known.
- A copy of the Notice of Inspection of I-9 Employment Eligibility Verification forms for the inspection to be conducted.
The notice must be provided in the language the employer normally uses to communicate employment-related information to the employee. The California Labor Commissioner published a template notice in early February. Currently, the notice is available in English (http://www.dir.ca.gov/DLSE/Notice_to_Employee.html) and in Spanish (http://www.dir.ca.gov/DLSE/Spanish/Notice_to_Employee.html).
The Labor Commissioner also published an FAQ, detailing compliance requirements of AB 450. [link: https://www.dir.ca.gov/dlse/AB_450_QA.pdf]
Notably, the FAQ states that the employer’s notice requirement is triggered only by receipt of a Notice of Inspection, but not triggered by a mere visit by immigration enforcement agency.
Once the inspection by the immigration agency is completed, the employer has additional notice obligations.
Within 72 hours of receiving the results of the inspection, an employer must provide to each current "affected employee" and their representative, if one exists, a copy of the written results of the investigation, and the obligations of the employer and the affected employees arising from the results of the inspection.
An "affected employee" is an employee who is identified by the immigration agency who may lack work authorization or an employee whose work authorization documents have been identified by the immigration agency as deficient.
The notice must be limited to the employee only and must be delivered by hand at the workplace if possible. If hand-delivery is not possible, the employer must deliver the notice to the employee by mail and email (if known). The notice must also be provided to the employee’s authorized representative.
This notice must include the following information:
- A description of any and all deficiencies or other items identified in the written immigration inspection results notice related to the affected employee.
- The time period for correcting any potential deficiencies identified by the immigration agency.
- The time and date of any meeting with the employer to correct any identified deficiencies.
- Notice that the employee has the right to representation during any meeting scheduled with the employer.
Currently, there is no template for this second notice.
AB 450 Limits ICE Agents Access And Documents Which Can Be Requested
The employer cannot allow the enforcement agent into any "non-public areas of the place of labor." The employer violates the law if they voluntarily allow the agent to non-public areas unless these are areas where employees are not present and the employer does not give consent to search the area. A "non-public" area is one that the general public is not normally free to enter or access.
The new law also prohibits employers from voluntarily providing access to enforcement agents to "access, review, or obtain the employer’s employee records." The employer can be subject to civil penalties of $2,000 to $5,000 for a first violation and $5,000 to $10,000 for each subsequent violation. However, an employer would not be subject to any penalty provision if:
- The enforcement agent provides a subpoena for employee records; or
- The enforcement agent provides a judicial warrant for employee records; or
- The enforcement agent only reviews employment records that are requested in a Notice of Inspection issued under federal law.
AB 450 Prohibits Reverifying Employment Eligibility In Some Instances
AB 450 prohibits an employer from re-verifying the employment eligibility of any current employee at time or in a manner that is not required by Title 8 USC 1324a(b). Violation of this prohibition subjects the employer to a civil penalty up to $10,000.
Needless to say, employers should be extra diligent in verifying employment in California. For more information concerning an employer’s obligations pursuant to AB 450 or general questions regarding AB 450, please contact one of the authors or attorneys in the Private Labor and Employment Group or visit our website at www.aalrr.com.