By: Ana Tsareva
On March 6, 2018, the U.S. Department of Justice asked a federal court to invalidate California’s AB 450—the Immigrant Worker Protection Act, which went into effect on January 1, 2018—and two other state immigration laws, arguing that they are preempted by federal law.
Though the California statutes remain in effect, the Justice Department is seeking a preliminary injunction which, if granted, would suspend the enforcement of AB 450 and related laws while the lawsuit goes forward. Until otherwise ordered by the court, employers must still comply with the act.
The Act places restrictions on public and private employers with regard to federal immigration agency enforcement actions at the workplace.1
- (1) Worksite Access: Requires a judicial warrant before providing an “immigration enforcement agent” with access to nonpublic areas of their worksite;
- (2) Records Access:Requires a subpoena or a judicial warrant before providing an “immigration enforcement agent” with access to employee records;
- (3) Notice:Requires notification to employees and labor union representatives before and after I-9 inspections; and
- (4) Reverification:Prohibits reverifying the employment eligibility of employees at a time or manner not required by federal law.
The new law limits worksite and records access by “immigration enforcement agents,” but does not define that term.
Though a broad interpretation of “immigration enforcement agent” could potentially include a wide range of officers from different agencies, in light of the rules covering immigration officers and authorities of the various immigration agencies, there are strong arguments to suggest that the term “immigration enforcement agent” refers to Immigration and Customs Enforcement (ICE) agents, and not to USCIS Fraud Detection and National Security (FDNS) inspectors and officers or agents from other agencies2. In any event, employers always have the right to request a subpoena or judicial warrant when an agent requests access to nonpublic areas of the worksite or seeks access to employee records.
The state law does not apply to federal agents that provide a Notice of Inspection to an employer; federal agents shall have access to I-9 Employment Eligibility Verification forms and other documents, as required by federal law. Within 72 hours of receiving the federal notice of inspection, an employer must provide notice to current employees of such inspection. A template form will be created by July 1, 2018, for use by employers to provide notice to employees. Upon request by an employee, the employer shall provide employee with a copy of the agency’s notice of inspection of I-9 Employment Eligibility Verification forms.
Violations of the law could result in the following civil fines: (1) $2,000 to $5,000 for a first violation of the worksite access, records access or notice requirements, and from $5,000 to $10,000 for each subsequent violation; and (2) up to $10,000 for a violation of the reverification prohibition.
1 42 No. 4 Construction Contracts Law Report NL 6 Construction Contracts Law Report, February 16, 2018 Construction Contracts Law Report Legislation
2 2 Immigr. Law & Business § 24:9 (2d ed.) Immigration Law and Business March 2018 Update, Austin T. Fragomen, Jr., Careen Shannon and Daniel Montalvo