Earlier this year, we blogged about AB 450 in California, the state law entitled “The Worker Protection Act” that was part of legislation passed last year in response to the Trump Administration’s enforcement-oriented stance on immigration. The law aimed to provide California workers some notice and protection at the work place regarding federal work-site enforcement programs.
AB 450 requires employers to deny federal immigration enforcement agents access to the non-public areas of a business premises without a judicial warrant. The law also penalizes employers who attempt to re-verify I-9’s that are not expiring and requires certain notice to go the workforce in the event of an I-9 audit.
In March 2018, US Attorney General Jeff Sessions sued the State of California in federal court to enjoin the enforcement of AB 450 and two other so called “Sanctuary State” laws. On the 4th of July, US District Court Judge John Mendez in Sacramento, California issued a ruling in the case.. The decision appears to be a victory for California because it left in place certain laws which bar local law enforcement agencies from turning over all but serious criminal offenders to the Federal Immigration agencies. However, the decision temporarily enjoins the enforcement of certain portions of AB 450, which became effective only 6 months ago on January 1st, 2018.
As a result, many employers are confused having just recently implemented the new requirements of AB 450 which carry stiff penalties including fines of up to $10,000 per violation.
Employers may still opt to follow the mandates of AB 450 but should be aware that at least for the time being, they will not be required follow certain portions of the law.
As a review the various elements of AB 450 and their treatment under the temporary injunction are as follows
- Employers must restrict immigration enforcement officials access to the non-public areas of a business without a judicial warrant. (Enforcement temporarily enjoined).
- Employers may not provide immigration enforcement officials with employee’s employment or payroll records without a judicial warrant, except for I-9 audits. (Enforcement temporarily enjoined)
- Employers must notify their workforce of an I-9 audit within 72 hours of receipt of a Notice of Inspection. ( In force)
- Employers must notify all affected workers of any findings by ICE that specify them as having an immigration status issue. ( In force)
- Employers may not “reverify” I-9s except as required by Federal law. (Enforcement temporarily enjoined)
This prohibition on “reverification” of I-9s has been especially problematic for California employers and puts them in between a “rock and a hard place”. Many employers wish to review and update their I-9s as part of preemptive compliance due to the current strict enforcement climate.
AB 450 carries a $10,000 fine for each violation by an employer who “reverifies” an I-9 when it is not required by Federal law. This has had a “chilling” effect on employer efforts to remedy any mistakes or omissions on an I-9 that would require them to sit down with an existing employee to verify documents that prove identity and the right to work that may not have been properly reviewed or recorded at the time of hiring.
This temporary injunction on the enforcement of the reverification portions of AB 450 gives California employers a small window of opportunity to get their I-9s in order. Employers are cautioned that requesting employees or prospective employees present more than the absolute minimum documentation, or specifying which documents are to be submitted, is illegal discrimination.
Because this is a complex and quickly changing area of law, employers should consult with an immigration attorney on specific next steps to take relating to the temporary injunction of portions of AB 450.