Effective January 1, 2018, the California Immigrant Worker Protection Act (the “Act”) requires private and public employers to “resist” informal worksite inspections by federal immigration enforcement agents. This new California law puts employers between the proverbial rock and a hard place by imposing significant fines (penalties between $2,000 and $10,000 per violation) on employers or any persons acting on behalf of employers who voluntarily consent to informal inspection demands and site visits by immigration officials. The new law requires employers to refuse entry to U.S. Immigration and Customs Enforcement (“ICE”) agents or other unspecified “immigration enforcement officials” who request access to non-public areas of the employer’s worksite or who seek to inspect the employer’s records, unless the federal officials present the employer with a valid subpoena or judicial warrant.

New prohibitions

While the new law contains exceptions for the federal E-Verify program and for certain Form I-9 inspection requests, the California State Attorney General and Labor Commissioner issued FAQs and an Advisory Bulletin on February 13, 2018 that make clear the significant burdens imposed on employers under the Act. Specifically, employers, or anyone acting on their behalf, are prohibited, except as otherwise required by federal law, from:

• Providing voluntary consent to an immigration enforcement agent (for example, an ICE agent) to enter nonpublic areas of a worksite unless the agent provides a judicial warrant.
• • The FAQs define a “judicial warrant” as a warrant that has been reviewed and signed by a judge upon a finding of probable cause. The name of the issuing court will appear at the top of the warrant.
  • The FAQs further state that documents issued by a government agency but not issued by a court and signed by a judge are not judicial warrants. Therefore, if an immigration enforcement agent presents an “administrative warrant” or a “warrant of deportation or removal,” employers will have to resist these official documents because they are not “judicial warrants.”
• Providing voluntary consent to an immigration enforcement agent to access, review, or obtain the employer’s employee records unless the agent provides a subpoena or judicial warrant.
• Re-verifying the employment eligibility of a current employee at a time or in a manner not required by federal immigration law.

Employee notification

Employers also must notify their employees if federal immigration officials seek to inspect the employers’ records. Employer are, except as prohibited by federal law, to:

• Provide each current employee (and the employee’s authorized representative, if any) notice of an inspection of I-9 Employment Eligibility Verification forms or other employment records conducted by an immigration enforcement agency within 72 hours of receiving notice of the inspection.

• • The notice must be posted in the language the employer normally uses to communicate employment information to employees, and must contain: (1) the name of the immigration agency conducting the inspection, (2) the date that the employer received notice of the inspection, (3) the nature of the inspection to the extent known, and (4) a copy of the Notice of Inspection of I-9 Employment Eligibility Verification forms for the inspection to be conducted.
  • The California Labor Commissioner has developed a Template that employers may use to give the required notice.

• Provide, upon reasonable request, an affected employee a copy of the Notice of Inspection of I-9 Employment Eligibility Verification forms.
• Provide an affected current employee, and the employee’s authorized representative, if any, a copy of the written immigration agency notice that provides the results of the inspection and written notice of the obligations of the employer and affected employee arising from the inspec­tion results within 72 hours of receipt of the notice of inspection results.

• • This notice must be specific to the affected employee only and must be hand delivered at the workplace, if possible. If hand delivery is not possible, notice must be given by mail or email to the affected employee and the affected employee’s authorized representative, if any. The required notice 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, and (4) notice that the employee has the right to representation during any meeting scheduled with the employer.

Next steps

Employers with operations in California should take the following steps to prepare for the Act:

• Develop and implement a written policy describing the procedures to follow when federal immigration officials seek access to company facilities or records;
  • The policy should specify who employees on the front lines (receptionists, facility managers, local Human Resources personnel, etc.) should contact within the Company when immigration officials come knocking, how employees should initially respond, and what steps employees must take in light of the Act.
• Train front line employees on the policy, the requirements of the Act, the meaning of legal terms such as “subpoena” and “judicial warrant,” and the appropriate ways to respond to requests from federal immigration officials.
• Create an incident reporting ladder that involves internal HR, legal and management functions, as well as outside counsel, so that immigration contacts receive the appropriate attention within in the Company.
• Develop and implement reporting procedures required by the Act for Form I-9 inspection requests.

For more information about the California Immigrant Worker Protection Act or any other employment matter impacting your business, please contact the authors or the attorney you regularly work with at Hogan Lovells.