Federal Judge Stops the State of California from Enforcing Controversial New Law that Limited Employer Conduct When Dealing with Federal Immigration Enforcement

Effective Date: July 4, 2018. 

Details: 
On July 4, 2018, a Federal District Judge enjoined the State of California from enforcing parts of AB 450, the controversial new law that limited employer conduct when dealing with federal immigration enforcement. 

Effective January 1, 2018, California’s public and private employers have been prohibited from voluntarily consenting to a federal immigration enforcement agent’s request to enter nonpublic areas in the workplace or to voluntarily allowing the agent access to employee records unless the agent provides a judicial warrant under AB 450. Today’s decision directly impacts these two key areas for employers. 

The Judge put on hold or enjoined California from enforcing Government Code Sections 7285.1 and 7285.2 against private sector employers. This means private sector employers cannot currently be prosecuted for: 

(1) allowing or consenting to a federal immigration enforcement agent’s request to enter nonpublic areas in the workplace; 

OR 

(2) voluntarily allowing a federal immigration enforcement agent access to employee records. 

The Judge also put on hold the new California prohibition against employers from re-verifying the employment eligibility of a current employee outside of the time and manner required by federal law. 

However, the Judge upheld the notice requirements in AB 450 even though they place an administrative burden on California employers. California employers are still required to provide notice to employees as follows:

• Pre-Inspection Notice: Within 72 hours of receiving a federal immigration agency’s notice of inspection (“NOI”) of employment records, including I-9 Employment Eligibility Verification forms, an employer must provide notice to each of its current employees. The posted notice must include (1) the name of the immigration agency conducting the inspection; (2) the date the employer received notice of the inspection; (3) the nature of the inspection to the extent known; and (4) a copy of the NOI. California has now released a Template Notice of Inspection Form, which meets the requirements under Labor Code 90.2(a)(1).
• Post-Inspection Notice: Within 72 hours of receiving written notice of an immigration agency’s inspection results, an employer must provide each affected employee (and his/her collective bargaining representative, if any) with written notice of the results. The notice must include (1) a description of any and all deficiencies or other inspection results related to the affected employee; (2) the time period for correcting any deficiencies identified by the immigration agency; (3) the time and date of any meeting with the employer to correct the deficiencies; and (4) notice that the employee has a right to be represented during any scheduled meeting with the employer. The notice must be tailored to the affected employee and hand-delivered the employee at the workplace. If this is not possible, the employer must endeavor to mail and e-mail the employee and the employee labor union, if applicable.