California’s Immigrant Worker Protection Act

Mar 7, 2018

For companies with employees in California, please note that California’s Immigrant Worker Protection Act went into effect on January 1, 2018.   The Immigrant Worker Protection Act places certain restrictions on when California employers may provide an immigration enforcement agency access to nonpublic work areas and employee records.   A summary of the Act and the additional requirements for California employers are described below.   On March 6, 2018, the U.S. Department of Justice filed a lawsuit against the State of California, seeking a permanent injunction prohibiting implementation of this Act.   If the injunction is granted, California employers may not be required to comply with the restrictions on access and the notification requirements described below.   We will continue to monitor this pending litigation and will send an update when appropriate.   However, currently, California employers should continue to follow the restrictions and requirements of the Act.

As noted above, California’s Immigrant Worker Protection Act generally prohibits employers from granting immigration enforcement agents voluntary physical access to nonpublic work areas or access to employee records.   However, the restriction on physical access to nonpublic work areas does not apply if the agent presents a judicial warrant, and the restriction on access to employee records does not apply if the agent presents a judicial warrant or subpoena.   In addition, the restrictions do not prohibit employers from complying with requests for I-9s and other employment records for which a notice of inspection has been provided.   These restrictions apply to the employer and anyone acting on behalf of the employer.   Thus, employees in California should be notified that any requests for physical access to nonpublic work areas or for employee records by an immigration enforcement agent should be promptly elevated to the legal department or other appropriate department or individual for further review.   The penalties for violating the restrictions on access to nonpublic work areas and employee records range from $2,000 to $5,000 for a first violation and $5,000 to $10,000 for all subsequent violations.

In addition to the restrictions on access to nonpublic work areas and employee records, the Act also requires that California employers provide certain notices to their employees relating to inspections of their I-9s or other employment records by an immigration agency.   In particular, all current employees (and their collective bargaining representatives, if any) must be notified of an inspection of the employer’s I-9s or other employment records by an immigration agency within 72 hours of receiving notice of the inspection.   The notice must include the name of the immigration agency conducting the inspection, the date the employer received the notice of inspection, the nature of the inspection (to the extent known), and a copy of the notice of inspection.   The California Labor Commission has provided a template posting that employers may use to comply with this requirement.   In addition, for any employee identified by the inspection results as an employee who may lack work authorization or whose documents have been identified as deficient, within 72 hours of receipt of the results of the inspection, the employer must provide the employee (and his/her collective bargaining representative, if any) with a copy of the written notice from the immigration agency providing the results of the inspection and the obligations of the employer and employee from the inspection.   The notice for each such employee must relate only to that employee and must be hand delivered in the workplace, if possible, or sent by mail or email to the employee (and his/her collective bargaining representative, if any).   The employer must also provide the employee with a copy of his/her I”‘9, upon reasonable request.   Failure to provide the notices required by the Act could result in civil penalties ranging from $2,000 to $5,000 for a first violation and $5,000 to $10,000 for all subsequent violations, but penalties will not be imposed if the employer fails to provide notice at the express and specific direction or request of the federal government.

Finally, the Act prohibits California employers from reverifying the employment eligibility of current employees at a time or manner not required by federal immigration law.   Violation of this section could result in a civil penalty of up to $10,000.

The California Office of the Attorney General and the California Department of Industrial Relations have provided a summary of the Act and FAQs.   These resources provide helpful information about what it means to provide “voluntary” consent, what is is considered a “nonpublic” work area, and what information the required notices to employees must contain.

Mollie E. Hennessee practices primarily in the areas of immigration, higher education, and employment law. She represents corporations, educational institutions, and individuals with their immigration needs, including obtaining temporary and permanent visas, handling employer sanctions issues, I-9 and E-Verify employment eligibility verification compliance, consular processing, and naturalization. Mollie also represents institutions of higher education with respect to employment and termination matters, student rights, and civil rights. Prior to joining the Firm, Mollie worked for the Department of Homeland Security’s Immigration and Customs Enforcement as an Assistant Chief Counsel. While in law school, Mollie served as an intern for the Honorable Catherine D. Perry of the United States District Court in Eastern Missouri. Mollie earned her B.A. from Saint Louis University, where she also received her law degree.

Our firm represents businesses, institutions of higher learning, and individuals with respect to immigration-related matters, including obtaining visitor visas, temporary and permanent work visas, consular processing of visas, obtaining citizenship, advising employers on employment sanctions issues, and defending employers faced with INS I-9 audits and investigations.