In case you haven’t noticed, immigration has been a hot topic of discussion in the news lately. While debates over Dreamers and the wall have dominated those discussions, the workplace has been swept into it all as well. On the one hand, the federal government’s efforts to curb illegal immigration have reached the workplace via frequent raids of businesses suspected of employing undocumented workers. On the other hand, California has deemed itself a “sanctuary state” and pushed back on these immigration sweeps via laws that punish employers who cooperate with federal authorities carrying out the raids. The collateral damage in that fight may just be the employers who are stuck in the middle. Employers who allow ICE agents into their business risk violating California law, but employers who turn the same agents away could find themselves in hot water with federal authorities. What to do? Fortunately, the state Labor Commissioner and Attorney General have jointly issued some guidance to aid employers in navigating these treacherous waters.
The Immigration Worker Protection Plan
As a brief reminder, beginning January 1, 2018, California’s Immigration Worker Protection Act, Assembly Bill 450, took effect. We previously blogged about the Act here. In a nutshell, the new law prohibits all California employers from (1) granting “voluntary consent” to an immigration enforcement agent to enter any “nonpublic area” of the workplace without a warrant and (2) voluntarily consenting to the agents’ accessing, reviewing, or obtaining employment records without a warrant or subpoena. The Act also requires employers to provide their workforce with 72-hours’ notice of any I-9 Employment Eligibility Verification Inspection. Employers who violate these laws can face fines up to $10,000.
While California’s Sanctuary State laws are well intentioned, they raise several questions for employers seeking to comply with both state and federal laws. What does it mean to grant voluntary consent? Are employers required to take physical measures to stop an overbearing enforcement agent? What constitutes a nonpublic area? How does an employer provide proper notice to employees of an upcoming 1-9 inspection? These are just some of the questions employers are tasked with when digesting the new law.
Joint Guidance From California’s Attorney General and Labor Commissioner
In response to these and other questions, on February 13, 2018, the Attorney General and Labor Commissioner published jointly on each of their websites a document entitled “Immigrant Worker Protection Act (Assembly Bill 450) Frequently Asked Questions.”
According to the FAQ, “voluntary consent” means that an employer allowed an agent to access restricted areas or documents without being subject to any “duress or coercion, either express or implied.” By way of example, the FAQ indicates a violation would occur if the employer freely asked or invited an agent to enter the restricted area, either with words or by freely opening a door. By contrast, the FAQ clarifies that employers are not required to physically block or interfere with an immigration enforcement agent to show that voluntary consent was not provided. With regard to records, employers may be deemed to have freely consented to allowing access if the employer freely states to an ICE agent that the agent may look at records or where to find them, or by freely turning on a computer or opening a file cabinet for the agent. Again, if the agent otherwise accesses or obtains records without such voluntary consent by the employer, no violation will have occurred. Ultimately, the FAQ indicates that the voluntary consent issue will be decided on a case-by-case basis.
The FAQ also provides guidance on what constitutes a “nonpublic area” of the business. Specifically, a nonpublic area means any area that “the general public is not normally free to enter or access.” The FAQ lists an office where payroll records are kept or an area that an employer designates as restricted to employees or management as examples of nonpublic areas. By contrast, it lists the dining room of a restaurant or sales floor of a store during business hours as public areas. The FAQ also clarifies that employers do not violate the Act by voluntarily allowing ICE agents to access such public areas.
Among other questions the FAQ answers are how an employer can recognize subpoenas and judicial warrants, what employers must do to comply with notice obligations pertaining to I-9 inspections. Finally, the FAQ clarifies that the Act does not require employers to violate federal law. The entire FAQ can be accessed here.
While the FAQ provides helpful guidance to employers who face immigration sweeps, the impact of these new laws is still relatively unknown. It remains to be seen how aggressively the Attorney General or Labor Commissioner will enforce these laws (private citizens and employees cannot enforce alleged violations). It is also unknown how each department will interpret case-by-case situations that vary from the illustrations in the FAQ. For now employers will be best suited by taking these steps to protect themselves:
- Train your management and frontline staff on the requirements of AB 450 and what to do in the event a sweep occurs. Employers should consider appointing a particular person within the company who is tasked with greeting and communicating with any enforcement agents who show up. Those who are not tasked with this responsibility should be trained to refer any agents to the appropriate person.
- If an agent shows up, those trained to respond should request to see a judicial warrant, subpoena, or Notice of Inspection before allowing the agents beyond the public area of the business or providing them any access. If the agent is unable to produce any such documentation, the person acting on behalf of the business should politely inform them that California law prohibits the employer from allowing them inside or accessing employee records. On the other hand, if the agent does provide such documentation, seek immediate guidance from your legal counsel as to what your obligations are.
- Employees should be trained that they are under no obligation to speak with immigration officials (although employers cannot prevent employees from voluntarily doing so).
- If an employer receives a Notice of Inspection indicating that an I-9 audit is upcoming, employers should comply with their 72-hour notice requirement to employees by posting the DLSE’s notice template (located here).
- Finally, employers should consult with legal counsel to ensure they are prepared to handle potential enforcement sweeps, with or without warrants or subpoenas, and/or Notices of Inspection.