New Template Makes It Easier for Employers to Provide Notice Under California’s Immigrant Worker Protection Act

Executive Summary: In a development welcomed by employers state-wide, the California Labor Commissioners Office released a template notice form for California’s recently enacted Immigrant Worker Protection Act well in advance of the July 1, 2018, deadline imposed by the law. The template provides employers with an approved and straight-forward option to provide required notice to employees of immigration enforcement efforts in the workplace, as required by the law.

Overview of the Immigrant Worker Protection Act

On October 5 2017, Governor Brown signed AB 450, the Immigrant Worker Protection Act, into law. The law, which took effect on January 1, 2018, was a response to anticipated increases in federal immigration enforcement efforts under the Trump administration and was aimed at providing workers some protections from federal immigration enforcement actions in the workplace. The law takes a two-pronged approach, regulating both the level of workplace access employers are permitted to provide to immigration enforcement officials and requiring notification to employees of immigration enforcement efforts. As immigration generally falls under the exclusive power of the federal government, the act sets up a potential clash between state and federal jurisdiction that could play out in courts well into the future.

On the access front, employers are prohibited from providing “voluntary consent” to immigration enforcement agents seeking to access “nonpublic” work areas without a warrant. The law further prohibits employers from providing “voluntary consent” to enforcement agents to access, review, or obtain employee records without a warrant or subpoena. Importantly, the law is limited in scope and only impacts an employer’s ability to voluntarily grant access. It does not alter, impact, or eliminate an employer’s obligation to comply with a valid warrant or subpoena.

In addition to regulating what access employers can grant to immigration authorities, the law establishes two notice requirements for employers who receive immigration enforcement requests. First, an employer must provide broad notice to all current employees (and any authorized representatives) of any inspections of any I-9 Employment Eligibility Verification forms or other employment records. Notice must be posted within 72 hours of receiving notice of the inspection and must include:

  1. The name of the immigration agency conducting the inspections of I-9 Employment Eligibility Verification forms or other employment records.
  2. The date the employer received notice of the inspection.
  3. The nature of the inspection, if known.
  4. A copy of the Notice of Inspection of I-9 Employment Eligibility Verification forms for the inspection to be conducted.

Second, employers must provide targeted notice to “affected employees” and their authorized representatives if an agency inspection identifies the employee as potentially lacking current and valid work authorization documents or having deficiencies in such I-9 documents. The targeted notice must be provided only to the employee and his/her representative, via hand delivery if possible, and must contain:

  1. A description of any and all deficiencies or other items identified in the written immigration inspection results notice related to the affected employee.
  2. The time period for correcting any potential deficiencies identified by the immigration agency.
  3. The time and date of any meeting with the employer to correct any identified deficiencies.
  4. Notice that the employee has the right to representation during any meeting scheduled with the employer.

The law, which is enforced by the Labor Commissioner and California’s Attorney General, has teeth, and penalties can be stiff. Employers that violate either the access or notice provisions of the law can face civil penalties between $2,000 to $5,000 for a first violation and $5,000 to $10,000 for each subsequent violation.

The Labor Commissioner’s Template Notice Form

The California Labor Commissioner’s Office’s recently published template provides an easy-to-use option for employers to comply with the notice provisions of the act. The one-page electronically fillable template is generally straight-forward and user-friendly. The template is available on the Department of Industrial Relations website at https://www.dir.ca.gov/DLSE/LC_90.2_EE_Notice.pdf. A Spanish version is also available at https://www.dir.ca.gov/DLSE/LC_90.2_EE_Notice_Spanish.pdf.

Employers’ Bottom Line:

While the template serves as a welcome and useful tool for California employers, immigration enforcement can involve a complicated interplay between state and federal laws, and the Immigrant Worker Protection Act is just one of many potential laws that can come into play. To effectively navigate the often complex landscape, employers are encouraged to consult counsel if contacted by an immigration enforcement agency.

If you have any questions regarding the issues addressed in this post, please free to contact the authors, Ross Boughton,  rboughton@fordharrison.com, partner in our San Francisco office, Geetha Adinata, gadinata@fordharrison.com, partner in our Los Angeles office, or Charles Roach, croach@fordharrison.com, partner in our Minneapolis office.

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