CALIFORNIA S IMMIGRANT WORKER PROTECTION ACT FRAGOMEN WEBINAR December 14, 2017
WITH YOU TODAY Speakers PATRICK SHEN Partner Washington, DC CYNTHIA J. LANGE Partner Silicon Valley, CA NANCY MOROWITZ Of Counsel New York, NY 2
CALIFORNIA S IMMIGRANT WORKER PROTECTION ACT (AB-450) 3
Under the Immigrant Worker Protection Act, California employers must: Overview of AB-450 Worksite Access: Require a judicial warrant before providing immigration enforcement agents with access to nonpublic portions of their worksite. Records Access: Require a subpoena or a judicial warrant before providing immigration enforcement agents with access to employee records. Notice: Notify employees and labor union representatives before and after immigration inspections. Reverification: Refrain from reverifying the employment-eligibility of their employees at a time or manner not required by federal law. 4
Overview of AB-450 Cont d Violations of the law could result in civil fines: Ranging from $2,000 to $5,000 for a first violation of the access or notice requirements and from $5,000 to $10,000 for each subsequent violation. Up to $10,000 for a violation of the reverification prohibition. Legislation shall not be interpreted, construed, or applied to restrict or limit an employer s compliance with a memorandum of understanding governing the use of the federal E-Verify system. New law becomes effective on January 1, 2018, but some critical state agency guidance will not be available until July 1, 2018. 5
SECTION 1: Access to Nonpublic Place of Labor Access To Worksite...an employer, or a person acting on behalf of the employer, shall not provide voluntary consent to an immigration enforcement agent to enter any nonpublic areas of a place of labor... [except with] a judicial warrant... If a court finds that an immigration enforcement agent was permitted to enter a nonpublic area of a place of labor without the consent of the employer or other person in control of the place of labor, the civil penalty shall not apply Employer may inspect warrant in nonpublic area where no employee is present and no consent is given to search premises in the process. Immigration enforcement agent should be narrowly construed to federal law definition per 8 CFR 103.1(b), which includes ICE and HSI, but should not include FDNS, DOL, DOS. 6
Access To Worksite Cont d Employer Action Plan: Ask agent to identify him- or herself and provide identification and documentation. Escalate internally and with counsel to determine if: 1. This is a qualifying immigration enforcement agent (if not, statute shouldn t apply); 2. The agent is seeking access to the nonpublic parts of the worksite; 3. The agent has a judicial warrant. Hold ground until decision is made. FAQs: What is an immigration enforcement agent? Are employers liable for violations committed at third party worksites? 7
SECTION 2: Access to Employee Records Access to Employee Records... an employer, or a person acting on behalf of the employer, shall not provide voluntary consent to an immigration enforcement agent to access, review, or obtain the employer s employee records without a subpoena or judicial warrant. Administrative subpoenas appear to be acceptable, and should be easy for immigration enforcement agents to obtain. Subpoenas and judicial warrants are not required if federal agents provide a Notice of Inspection (NOI) for Form I-9 and other documents. 8
Access to Employee Records (con t) Employer Action Plan: Ask agent to identify him- or herself and provide identification and documentation Escalate internally and with counsel to determine if: Access to Employee Records Cont d 1. This is a qualifying immigration enforcement agent (if not statute shouldn t apply); 2. The agent is seeking access to employee records; 3. The agent has a subpoena or judicial warrant. FAQs Simple answer is to request a subpoena. What if the immigration enforcement agent is seeking access to records in another state, but the employee is in California? Must the employer require a subpoena or judicial warrant before providing the requested documentation? What should an employer do if employee records are being requested via telephone? Via e-mail? 9
Notice SECTION 4: Notice Before I-9 Inspection Notice Employer must advise all employees (and union rep) within 72 hours of receiving notice of inspection (NOI) for Form I-9 or other employment records. Notice must be in language normally used to communicate about employment-related issues. Posting must include: The name of the immigration agency conducting the inspection; The date the notice was received; The nature of the inspection; A copy of the NOI. Employer must provide copy of NOI (for Form I-9 only) to affected employees upon reasonable request. California s Labor Commission to develop template posting notice by July 1, 2018. Statute is silent regarding posting requirements January 1 July 1. 10
SECTION 4: Notice After I-9 Inspection Notice Cont d Employers must provide copy of inspection results received from the government to affected employees (and union rep) within 72 hours of receipt of such results. Employers must hand-deliver (if possible) individualized written notice to each affected employee (and union rep) within 72 hours of receiving the inspection results, containing: A description of the error that the government is alleging; How much time the employee has to correct the error; When and where the employee can meet with employer to correct error; and The employee s right to representation during meeting. Affected employee = employee deemed by government inspector to lack work authorization. 11
SECTION 5: I-9 Reverification Employment Reverification and Other Issues Employers may not reverify employees work authorization unless required under federal immigration law No discriminatory intent is required (strict liability) Potential pitfalls: Completing new Form I-9 for all employees after companywide audit reveals substantial number of substantive errors; Treating employees as new hires after merger or acquisition; Completing new Form I-9 instead of Section 3 when reverifying current employees; Inadvertently reverifying expiring documents (e.g., green cards, List B identity documents) instead of expiring work authorization; and Conducting reverification before current work authorization expires. 12
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