U.S. Immigration Compliance – Update on California Labor Code
The California Labor Commissioner’s Office has released a must-have template for HR departments, which addresses the state’s new law, effective January 1, 2018, on Form I-9 inspections and the protection of immigrant rights.
In October 2017, Governor Jerry Brown signed the Immigrant Worker Protection Act (AB 450) into law, which requires (among other things) that employers notify their employee workforce of any government Form I-9 inspections within 72 hours or face potential penalties and fines. The template posting notice is described in some detail below, and can be downloaded here in English or here in Spanish.
This new law puts California employers in a tough situation, as they are now required to comply with California law, and provide notice on any Form I-9 inspections or audit performed by U.S. Immigration and Customs Enforcement (“ICE”). California employers face harsh penalties for failure to provide this notice. Numerous other requirements in the Immigrant Worker Protection Act impact California employers. They are designed to protect an estimated three million plus undocumented California employees, including new regulations relating to Form I-9 inspection practices, and policies for access to an employer’s place of business, employment records, and reverification of work authorization for current employees. Wolfsdorf Rosenthal LLP’s blog entry from January 2, 2018 summarizes these new additions to the California Labor Code. On the other hand, California employers are advised to cooperate with Federal Offcials from ICE as much as possible during a Form I-9 inspection or audit. Failure to properly cooperate could lead to liability under U.S. federal immigration laws.
There is little doubt that ICE is prioritizing Form I-9 compliance by U.S. employers after President Trump signed Executive Order 13788 titled “Buy American and Hire American,” a broad directive which calls for the rigorous enforcement and administration of existing laws to protect the interests of U.S. workers. ICE served Notices of Inspection (NOIs) on 77 Northern California businesses in San Francisco, San Jose, and Sacramento. Each one of these employers would have been required (under the new law) to notify their workers of the inspection through a public posting. While California has not specifically indicated how they will be policing the law, California Attorney General Xavier Becerra has expressed a strong desire to prosecute employers who violate these new requirements.
Now is the time for California employers to revisit – or create – a company Form I-9 compliance audit plan. Wolfsdorf Rosenthal LLP advises that California employers speak with an experienced California attorney who is knowledgeable in both immigration and employer compliance. While this notice requirement may seem relatively straight-forward, there are a host of potential complications with the new law, which may soon see the light of day as ICE continues to ramp up its enforcement efforts. In addition, employers are strongly encouraged to conduct a thorough top to bottom review of their I-9 and E-Verify compliance initiatives to ensure they can withstand the inevitable visit from a friendly government officer.