AB 450 IMMIGRANT WORKER PROTECTION ACT
On Friday, February 16th, the California State Attorney General’s office and Labor Commissioner issued long-awaited interpretive guidance on the Immigrant Worker Protection Act (“AB 450”), a new state law enacted by the California Assembly to provide foreign workers protection from increased immigration enforcement action by the Federal government. Among other restrictions, AB 450 prohibits employers from providing “immigration enforcement officers” access to non-public parts of its premises without a warrant, or access to immigration records without a warrant, subpoena or notice of inspection. The law also requires employers to give notice to their employees within 72 hours whenever a federal immigration agency issues a notice of inspection.
While the requirements of AB 450 appear to be aimed narrowly at protecting undocumented workers from deportation and other enforcement actions by the Federal government, the prohibitions of the law are drafted broadly, and potentially affect employer compliance relating to the sponsorship of H-1Bs, and other temporary foreign workers. The Attorney General’s newly released FAQs have unfortunately failed to answer some of the important questions about the scope of the new law.
We have provided a summary of the key provisions of AB 450 below, as well as recommended best practices for employers in the event of an immigration-related investigation, site visit or notice of inspection. This FAQ will be updated as we receive additional guidance from the California state government.
Summary of AB 450 Provisions
Except as otherwise required by federal law, all public and private employers in California must adhere to the following rules and notice obligations, or they will be subject to civil action and fines by the State:
1. No Access to Nonpublic Areas at Place of Employment Without Judicial Warrant
Employers are prohibited from giving voluntary consent to an immigration enforcement agent to search any nonpublic areas at a place of employment, unless the agent presents a judicial warrant.
2. No Access to I-9s or Employee Records Without Subpoena, Judicial Warrant, or Notice of Inspection by a Federal Immigration Agency:
Employers are prohibited from giving voluntary consent to an immigration enforcement agent to access, review, or obtain employee records unless a subpoena or a judicial warrant, or a written Notice of Inspection has been previously issued.
3. Employers Must Provide Notice to Employees upon Receipt of a Notice of Inspection Issued by a Federal Immigration Agency:
Within a 72-hour period, employers are required to provide notice to all current employees of a written Notice of Inspection from a federal immigration agency. Employers are also required to provide notice of the inspection results to affected employees
4. No Reverification of I-9s Unless Required by Federal Law:
Employers are prohibited from reverifying employment eligibility of a current employee at a time or manner not required by federal law (8 U.S.C. §1324a(b)).
AB 450 FAQs
What is a Notice of Inspection?
For purposes of AB 450, a Notice of Inspection, or “NOI,” is an advance notice issued by either the Department of Homeland Security (DHS) or U.S. Department of Labor (DOL) notifying an employer that it intends to inspect some or all of the employer’s I-9 employment verification records, or other employee records. NOIs are generally issued 3 days prior to the date of intended inspection.
What do I do if my company receives a NOI from the DHS or DOL?
If you receive a NOI issued by either the DHS or DOL, the employer should give notice to all employees within 72 hours, by using this form, as required by Section 4 of AB 450. Although it is unclear whether AB 450 applies to NOIs pertaining only to Labor Condition Application (LCA)-related compliance files, or other non-immigration-related files, until further guidance is issued from the State, we recommend assuming that AB 450 applies to such records, and provide employee notice accordingly. We strongly recommend that clients of Goeschl Law Corporation also contact our office immediately in the event a NOI is received.
What do I do in the event of an unannounced investigation by the Immigration and Customs Enforcement (ICE) or Department of Labor?
The employer must allow access to ICE officers if a subpoena or warrant is presented. If the immigration officer does not present a subpoena or warrant, and the employer grants the officer access to employee records, or non-public parts of its premises, the employee may be liable under AB 450. Note that an ICE investigation is not the same as a “site visit” conducted by the U.S. Citizenship and Immigration Services (USCIS) (see below).
What do I do if a member of the public asks to see our LCA Public Access Files?
A request by a member of the public to view LCA public compliance files, is not covered by AB 450. The employer is not required to give notice to other employees in the event of such request.
What is a “site visit”?
The USCIS Fraud Detection and National Security Office (FDNS) makes unannounced site visits at employers that have sponsored foreign nationals for work authorized status (e.g. H-1B and L-1). The purpose of the site visit is to verify the information that the employer provided on the sponsoring petition.
What do I do if a USCIS officer shows up for an unannounced “site visit”?
While the Attorney General has not provided specific guidance, we believe that employers may voluntarily comply with a FDNS site visit without violating AB 450. Note that the employer consents in advance to site visits when filing the petition, and failure to provide information voluntarily through the site visit process could result in the petition being revoked. The employer should not, however, provide any employee records, or information about workers who are not sponsored by the employer. Additionally, the FDNS officer should obtain employee records relating to the sponsored foreign worker directly from that worker, with that worker's consent. The employer should also only allow the FDNS officer access to areas commonly used to meet with guests, and not grant access to parts of the worksite that are considered private, such as employees’ offices or cubicles, the lunch room, etc.
Does AB 450 apply to DOL investigations conducted by the Wage and Hour Division?
Probably. Although it is yet to be determined which inspections of I-9 forms and employee records fall within the scope of AB 450, it is likely that the State law applies to DOL investigations as ICE and DOL operate under a Memorandum of Understanding to exchange information on employer violations under federal immigration and labor laws. During an investigation, the DOL will request for access to records beyond the documentation kept in the LCA Public Access Files, such as I-9 forms, employee records and payroll records. These investigations usually stem from a complaint from a current or former employee and focus on whether foreign workers are receiving the wages and are working in the job and at the location specified on the LCAs.
Will employer consent to a DOL investigator to access and obtain employee records violate AB 450?
No, so long as a written Notice of Inspection or Investigation has been issued. As noted above, AB 450’s restriction on providing access to I-9 forms and employee records does not apply if a written Notice of Inspection has been issued. If a DOL investigation is initiated, the DOL will typically issue a Notice of Investigation at least three (3) days before the inspection.
Does AB 450 prevent employers from conducting I-9 re-verification of its workers?
No. AB 450 prohibits employers from conducting improper I-9 reverifications. i.e. employers should not reverify the employment eligibility of current employees at a time and manner not required by federal law. The laws related to reverification of I-9s are designed to protect employees from discrimination and only permit employers to reverify I-9s in certain scenarios and at appropriate times, such as completing Section 3 of the I-9 when a current employee’s work authorization has an expiration date. Federal I-9 employment verification regulations, however, are not entirely clear as to the specific time that the reverification can be done. We recommend re-verifying, where required, on the date on which the foreign national’s work authorization expires. In this scenario, employers should not tell employees to provide documentation before the work authorization expires, but instead should ask the employee to come in “on or before” the expiration date to present documentation of his or her choice showing continued work authorization. Per USCIS guidance, employers may remind employees 90 days before the expiration date.
As a reminder, employers should not reverify the following documents after they expire: U.S. passports, U.S. passport cards, Alien Registration Receipt Cards/Permanent Resident Cards (Form I-551), or List B identity documents.
Does AB 450 prevent employers from conducting internal I-9 audits?
No. AB 450 does not apply to I-9 internal audits as they are conducted internally and are neither required by federal law nor involve a federal enforcement officer. These actions should not violate AB 450 so long as the internal audits do not involve improper reverification.
Does AB 450 apply to DOL or ICE Inspections of I-9 employment verification records?
Yes. DOL typically issues a Notice of Inspection or Investigation at least three (3) days before the scheduled I-9 inspection. As stated above, compliance with a scheduled inspection should not violate AB 450 where prior written notice by the federal immigration agency is provided. In certain circumstances, ICE may also issue a written Notice of Inspection of I-9 records or employee records. If, however, a federal agent requests for access to I-9 forms, employee records and/or other employment documentation during an unannounced worksite enforcement action, the employer should request for a subpoena or judicial warrant.
Does AB 450 require employers to provide notice to employees of an I-9 inspection?
Yes. If a Notice of Inspection from a federal immigration agency is received, employers should adhere to the employee notice requirements specified in AB 450 before and after the scheduled inspection to avoid a possible violation under State law.
Will an employer be subject to penalties if it does not comply with AB 450?
Yes. AB 450 authorizes the California State Labor Commissioner and Attorney General to enforce the law through civil action before a Court. Noncompliance with AB 450 where the employer voluntarily consents to an immigration enforcement agent to search non-public areas at the place of employment without a judicial warrant, or where an employer voluntarily gives an agent access to employee records without a subpoena or judicial warrant, or a Notice of Inspection could result in civil penalties of $2,000 up to $5,000 for the first violation and $5,000 up to $10,000 for each subsequent violation. The State’s FAQs describe actions that qualify as “voluntary consent” as opening the door and inviting an agent into nonpublic areas or freely turning on the computer that contains I-9 forms or employee records. However, per the State’s guidance, there is no violation if the employer did not provide consent, or where consent is given under coercion or duress. Please note that AB 450 does not require employers to physically block or physically interfere with an agent to demonstrate that voluntary consent was not provided.
Employers who fail to provide notice to employees of an inspection of employee records requested through a Notice of Inspection may also face civil penalties of $2,000 up to $5,000 for the first violation and $5,000 up to $10,000 for each subsequent violation. However, the State’s FAQs indicate that “the penalty will not apply if an employer fails to provide notice to employees at the express and specific direction or request of the federal government.”
As to improper reverification of I-9 forms, an employer could face a civil penalty of up to $10,000 if found in violation.
If an employer complies with AB 450, will it be found to be in violation of Federal immigration law?
No. AB 450 states that employers should comply with the State law “except as otherwise required by federal law.” Per the State’s FAQs, “compliance with AB 450 does not compel employers to violate federal law”; it only requires employers to decline from voluntarily consenting or cooperating with federal immigration agents.
Should an employer establish internal policies to comply with AB 450 and federal immigration law?
Yes. Employers should ensure that their I-9s and employee records are up to date and comply with federal law in the event that a worksite enforcement action occurs, or an Notice of Inspection or Investigation is received. We recommend that employers train appropriate personnel on employer rights and obligations under both State law and federal law, and establish internal protocols on how to interact with an Immigration Enforcement Agent or an officer from a federal immigration agency who appears for a worksite visit or enforcement action, and how to respond when a subpoena or judicial warrant is presented.