ICE Inspections – What Employers Need to Know After AB 450
With the recent news regarding ICE raids on 7-11’s across the country, rumors of raids targeted at Northern California businesses and California’s Attorney General announcing plans to prosecute employers for violation of new laws passed through AB 450, employers should have a plan in place in the event of a raid. As of January 1 AB 450 created new laws governing employers’ obligations related to immigration enforcement efforts. Below is some guidance for employers to use in navigating these tricky situations as well as an overview of the new laws stemming from AB 450.
Tips for Handling Immigration Agency Inspections:
- Do not allow agents to enter any non-public area, or provide access to records, without a valid warrant, or for records a valid “Notice of Inspection.”
Public areas: generally parking lots, lobbies, waiting areas, or other places the public enters or is permitted to enter.
Non-public areas: offices, back of house areas, areas marked “private” or “no trespassing,” and areas where the public is not permitted to enter due to company policy.
- When requesting a warrant, communicate with the agent in a public area and away from employees.
(Make sure the warrant is valid and signed by a Judge. Warrants from the Department of Homeland Security are not valid.)
- If you receive a “Notice of Inspection,” notify employees promptly (within 72 hours).
- Do not unnecessarily re-verify employment.
- Consider implementing a plan with the procedure to follow in the event of an inspection.
- Train employees – especially front-of-house workers, or those that greet visitors – on the new law and what to do in the event of an inspection. Employees should be advised to tell inspection agents that they are not authorized to allow entry and the name of the person who is.
Tips for Communicating with Employees about Inspections:
- Ensure you are abiding by the required notice procedure and content of Labor Code §90.2, described below.
- You may advise employees that they do not have to talk to immigration enforcement agents, and they do not have to provide any documents.
- Advise employees to call an immigration attorney, Legal Aid, or another resource.
- Avoid getting admissions from employees regarding whether they are legally authorized to work unless you are required by law to re-verify their status.
AB 450 created obligations of an employer as it relates to (1) an immigration agency inspection, (2) notice to employees regarding an inspection, and (3) re-verifying employment. Violation of these new laws carries fines for employers that vary from $2,000-$10,000.
Obligations Upon Immigration Agency Inspection:
(Gov. Code §§7285.1, 7285.2, 7285.3)
- Employers cannot provide voluntary consent to ICE agents to enter non-public areas without a warrant.
- Employers can and should take an ICE agent to a public area where employees are not present in order to verify if there is a warrant.
- Employers cannot provide voluntary consent to an ICE agent to access, review or obtain employee records without a subpoena or warrant.
Employers may challenge the validity of the warrant or subpoena.
- Employers may provide I-9’s or other forms if a Notice of Inspection has been provided to the employer, without requiring a subpoena or warrant.
Employee Notice Regarding Inspection:
(Labor Code §90.2)
- Provide notice within 72 hours of receipt of any Notice of Inspection. The notice must contain (1) the name of the agency conducting the inspection, (2) the date the notice was received, (3) the nature of the inspection (to the extent known), and (4) a copy of the Notice of Inspection. The Labor Commissioner will have a template available by July 1.
- Provide a copy of the Notice of Inspection to employees that request it.
- Provide a notice of the results of the inspection to all affected employees within 72 hours of receipt of the results, along with written notice of the obligations of both the employer and employee. This notice must contain (1) description of the identified deficiencies as stated in the inspection results, (2) the time period to correct the deficiencies, (3) the time and date of any meeting with the employer to correct the deficiencies, and (4) notice that the employee has a right to representation during any meeting scheduled.
“Affected employee” is one that is identified in the results from the immigration agency who may lack work authorization, or whose work authorization contains deficiencies.
(Labor Code §1019.2)
- Employer is not permitted to re-verify the employment eligibility of a current employee at a time or manner not required by Section 1324a(b) of Title 8 of the US Code. Essentially, this means that employers can only re-verify employment for current employees at the time the work authorization expires.