AB 450: California's Law Of Unintended Immigration Consequences

Seyfarth Synopsis: California's new law, Assembly Bill 450, signed by Governor Brown on October 5, and effective January 1, 2018, imposes several new immigration-related duties on California employers and the potential for civil fines. AB 450 will require employers to understand or seek guidance on where the new law ends and federal immigration law begins. The complexities of U.S. immigration law make drawing this distinction very difficult. This blog post provides an in-depth analysis of foreseeable challenges California employers - whether or not they petition for foreign workers - will likely face.

The California legislature and Governor Jerry Brown have once again entered the immigration fray.

This foray is not about its Sanctuary State legislation, recently enacted, and promptly decried by U.S. Attorney General Jefferson Beauregard Sessions III as "unconscionable", and by Thomas Homan, Acting Director of U.S. Immigration and Customs Enforcement (ICE), as "[forcing his] hand," and causing him to "quadruple workplace crackdowns."

No, the latest California leap into the federal immigration ecospace is Assembly Bill 450, which imposes civil fines on employers ranging from $2,000 to $10,000 per violation for a variety of newly unlawful practices. Signed by Gov. Brown on October 5, 2017, AB 450 stands among a slew of new California laws taking effect on January 1, 2018. AB 450 will add three new sections to the Government Code and two new sections to the Labor Code - 90.2 and 1019.2.

Under the new law, every public and private employer in California, or any person acting on the employer's behalf, must:

No Fourth Amendment Waiver

Refrain from waiving Fourth Amendment protections against unreasonable searches and seizures by:

granting voluntary consent to enter any non-public areas at a place of labor, except if presented with "a judicial warrant," granting voluntary consent to an immigration enforcement agent to access, review, or obtain the employer's employee records without "a subpoena or judicial warrant," except if an "immigration agency" (most often, this would be Homeland Security Investigations [HSI], an agency of U.S. Immigration & Customs Enforcement [ICE]) issues a Notice of Inspection (NOI) of Employment Eligibility Verification Form I-9s and other records required to be maintained under federal immigration regulations in order to verify employment eligibility; Posted Notice of Worksite Inspection

Post a notice at the worksite in the language the employer normally uses to communicate employment-related information to employees, within 72 hours of receiving an NOI, communicating the following information to employees:

An immigration agency, identified by name, has issued an NOI (a copy of which must also be posted at the same time) and will conduct inspections of I-9 forms or other employment records. The date that the employer received the NOI. The "nature of the inspection" to the extent known. Notice to the Union

Give written notice to the "employee's authorized representative," namely, the exclusive collective bargaining representative, if any, within 72 hours of the immigration agency's issuance of an NOI:

Delivery of Requested Copy of the Notice. Provide any employee, upon reasonable request, with a copy of the NOI; Provide Notice of Suspect Documents. Within 72 hours of the employer's receipt of a written immigration agency notice informing the employer of the results of the agency's inspection of the I-9s and the employer's employment records, typically entitled, a "Notice of Suspect Documents" (NSD), provide a written notice to certain "affected employees" who apparently lack work eligibility (and any collective bargaining representative) of the obligations of the employer and the affected employees, containing the following information: A description of any and all deficiencies or other items identified in the written immigration inspection results notice related to the affected employee. The time period for correcting any potential deficiencies identified by the immigration agency. The time and date of any meeting with the employer to correct any identified deficiencies. Notice that the employee has the right to representation during any meeting scheduled with the employer. No Re-Verifying Current Employees

Refrain from re-verifying the employment eligibility of a current employee at a time or in a manner not required by the employment eligibility verification provisions of the Immigration Reform and Control Act of 1986, 8 USC § 1324a(b), or that would violate any E-Verify Memorandum of Understanding the employer has entered into with the Department of Homeland Security.

To be sure, AB 450 offers sops...