In October 2017, acting director of U.S. Immigration and Customs Enforcement (ICE) Thomas Homan announced the agency’s plan to increase worksite immigration enforcement by four to five times current levels in the next fiscal year. Through I-9 Employment Eligibility Verification audits and workplace raids, Mr. Homan warned that ICE will not only detain and remove undocumented workers but will also prosecute the employers who hire them.
The increased focus on worksite enforcement is made even more consequential by the significant increase in civil penalties for I-9 violations.
In addition to the civil monetary penalties, employers may also face debarment from various federal programs as well as criminal prosecution.
In California, employers must now also ensure compliance with the Immigrant Worker Protection Act (IWPA). Signed into law as Assembly Bill 450 by Governor Jerry Brown in October 2017 and effective January 1, 2018, the IWPA imposes various requirements on both public and private employers relating to federal immigration agency immigration worksite enforcement actions.
Warrant Required to Enter Worksite
The law prohibits an employer from providing voluntary consent to an immigration enforcement agent to enter nonpublic areas of the worksite, unless the agent provides a warrant.
Subpoena Required to Provide Employee Records
The law prohibits an employer from providing voluntary consent to an immigration enforcement agent to access, review, or obtain employee records, unless the agent presents a subpoena or court order. However, there is an exception for I-9 forms and other documents if the agent provided the employer with a notice of inspection.
- Notice to Employees Required
The law requires an employer to provide current employees with notice of an immigration agency I-9 or other employment record audit within 72 hours of receiving the federal notice of inspection from the agency. The Labor Commission is required to create a template for notice to employees by July 1, 2018. Until then, employers must use their best judgment to provide written notice to employees of a worksite enforcement action within the required time period.
Copy of Notice of Inspection to Employees
The law requires an employer, upon reasonable request, to provide each affected employee a copy of the I-9 notice of inspection.
Copy of Results of Audit to Employees
The law requires an employer to provide each affected current employee and collective bargaining representative, if applicable, a copy of the agency’s written inspection results and written notice of the obligations of the employer as it applies to the employee.
- Prohibits Improper Re-Verification
The law prohibits an employer from re-verifying the employment eligibility of a current employee at a time or in a manner not required by federal law.
The IWPA does state that the above restrictions apply “except as otherwise required by federal law” and specifies that “an employer’s commitments under an E-Verify Memorandum of Understanding remain controlling and in effect.” This opens the door to some confusion for California employers who must now attempt to determine where federal law and state law conflict and do their best to comply with both. Further, the IWPA is not without teeth; failure to comply leaves an employer vulnerable to penalties of $2,000 to $5,000 for a first violation and $5,000 to $10,000 for each subsequent violation.
For the above reasons, the law is not without controversy. While Senate amendments to the bill removed opposition from the Chamber of Commerce and other business interests, the Society for Human Resource Management (SHRM) remained opposed to the bill’s passage, stating that “while well intentioned, [the bill] will add a host of unnecessary burdensome requirements, create many logistical challenges, and could possibly force human resource professionals to decide between federal law or state law.”
However, supporters of the bill stressed its necessity in light of current events. As expressed by the bill’s lead author, Assemblyman David Chu, “In an environment of division and fear, California must continue to defend its workers, to guard its values and to ensure that its laws protect all of our residents. The bill declares California’s determination to protect our economy and the people who are working hard to contribute to our communities and raise their families in dignity.”
---------------------------
Fausta Maria Albi is a co-managing partner of Larrabee Albi Coker LLP (LAC), an AV-rated leader in the field of employment-based immigration law. The firm has a 30-year legacy in immigration law, supporting the innovators, entrepreneurs, discoverers, and educators committed to making great contributions in their field—and who seek to do so from the United States. In practice for over 20 years, Ms. Albi was selected 2017 “Lawyer of the Year” by Best Lawyers® for immigration law in San Diego. She has served in various liaison positions for the American Immigration Lawyers Association; is the current president of the Italian American Bar Association of San Diego; and is a board member of the ABA’s Immigration Justice Project. Ms. Albi is a graduate of the University of San Diego School of Law.
