The State of California and the Trump administration continue to butt heads over the issue of immigration. In 2017, in response to the immigration policies of the Trump administration, the California legislature passed AB 450 (which became law as of January 1, 2018) which impacted how California employers deal with federal immigration authorities. On July 4, 2018, the Trump administration scored its first win in the battle with California when a federal judge issued a preliminary injunction which significantly limited key provisions of AB 450. While the injunction limited enforcement of components of AB 450, it did not do away with it entirely.
Here is a brief review of what Assembly Bill 450 entailed. One provision of AB 450 prohibited employers from voluntarily allowing federal immigration authorities access to nonpublic areas of the worksite without a judicial warrant or allowing review of personnel documents without a subpoena or warrant. The law also made it mandatory for employers to provide their workers with notice of certain immigration enforcement actions and results and imposed statutory penalties for violations of the law. The State Labor Commissioner was authorized to recover penalties up to $10,000 for violations of this law.
The July 4, 2018, federal court ruling only impacted some of the provisions included in AB 450. The court put on hold the provisions that prohibited employers from voluntarily cooperating with federal immigration authorities. Specifically, the court held that a business cannot be fined for voluntarily consenting to federal immigration enforcement’s entry into nonpublic areas of its place of business or access to its employment records, and that the California law discriminated against those businesses who choose to deal with the federal government.
The second of the provisions to be struck down was AB 450’s prohibition on reverification. This prohibition barred an employer from re-verifying the employment eligibility of a current employee at a time or manner not required by federal law. The court found that that the prohibition on reverification was an obstacle to the accomplishment of Congress’s purpose in enacting federal laws prohibiting employers from knowingly employing unauthorized individuals. This means that employers that discover issues with I-9 documents may correct I-9 without fear of violating AB 450.
The notice provisions of AB 450 remain intact and employers should continue to comply with these provisions. The notice provisions are those requiring employees to be given notice of any planned inspection of I-9 forms or other employment records within 72 hours of receiving an inspection notice from immigration authorities. Upon request, employers must also provide an affected employee with a copy of a Notice of Inspection of I-9 forms received from immigration authorities. Employers must also provide affected employees (and their representatives) a copy of the notice that details the results of the inspection within 72 hours of receiving it, as well as written notice of the obligations of the employer and the affected employees arising from the results of the inspection.
This battle is far from over. The preliminary injunction just prevents enforcement of the impacted sections of AB450 while the litigation continues. We will keep you updated as this situation unfolds and, as always, your Sagaser Watkins and Wieland PC attorneys are here to answer any of your questions.