An Employer’s Guide to California’s Workplace Sanctuary Law

Authored by: Chris Hughes, Esq.

As soon as revelers counted down from “10” to “Happy New Year”, California officially became a “Sanctuary State.” One might think that such a designation only impacts local law enforcement, but thanks to Assembly Bill 450 (“AB 450”), employers in 2018 must also know how to deal with Federal immigration officials. As if complying with a complex maze of wage and hour, discrimination, and leave of absence laws wasn’t enough, right? Thankfully, compliance with AB 450 is relatively low-cost and straightforward.

Entering Your Workplace

Workplace inspections are among the most common ways that immigration officials enforce Federal immigration laws. When immigration agents show up at worksites and request to search the premises, AB 450 prevents employers from authorizing the search in non-public areas without a judicial warrant.

There are a few things employers should be aware of concerning this requirement. First, judicial warrants are signed by a judge, either from the U.S. District Court or the California Superior Court. Conversely, administrative warrants are issued by the Department of Homeland Security via Forms I-200 or I-205. Under AB 450, administrative warrants are not sufficient for a Federal agent to inspect or enter non-public locations at the worksite.

Second, AB 450 only prevents immigration agents from entering certain areas of an employer’s workplace. Although employers are free to choose which areas are public and non-public, that choice should be consistent with their overall business model. Put another way, telling Federal agents they may not enter an area where the general public may purchase your goods or retain your services is not something you want to do. Make sure private areas are truly private.

Despite AB 450, employers can allow immigration agents into public areas of their workplaces without any type of warrant. Employers can take agents into non-public areas of the workplace to verify whether they have a judicial warrant, so long as no employees are present and no consent to search is given.

LBLG Tips:

• Request to see the warrant. It must be signed by a judge!
• Designate public and non-public areas in your employee handbook and communicate this designation to employees in training.
• Designate employees (preferably managerial levels or higher) and/or attorneys who will be the primary points of contact if an ICE agent visits your worksite.
• Ask for a business card of the agent and have your managerial employees document the agents’ actions immediately after they leave your premises.

Inspecting Your Records

Once inside, AB 450 prevents employers from authorizing immigration officials to inspect their records without a judicial warrant or subpoena. This requirement is self-explanatory, but employers should understand how it interacts with a Notice of Inspection. If immigration officials serve employers with a Notice of Inspection, employers must comply with the Notice pursuant to some additional requirements outlined below. If the employer has not been served with a Notice, this provision merely prevents employers from turning over records absent a judicial warrant or subpoena.

LBLG Tips:

Keep I-9 forms and personnel files separate. If immigration officials have issued a Notice of Inspection to view I-9 forms, don’t violate AB 450 by turning over other employee records which officials do not have a warrant or subpoena for.

Notices of Inspection

Another common immigration enforcement tool is a Notice of Inspection, also known as an I-9 Audit. Although Federal officials can force employers to produce or make available their employees’ I-9’s, they can also seek other employee records such as personnel files and quarterly wage reports. Although AB 450 does not prevent employers from complying with Notices of Inspection, it does mandate that employers notify their employees of the Notice.

Specifically, employers must now notify their employees within 72 hours of receiving a Notice of Inspection. The notification must be posted at all relevant worksites and must identify the issuing agency, the nature of the inspection (to the extent known), the date of receipt of the inspection notice, and must include a copy of the Notice of Inspection that the employer received. Moreover, if an employer has union employees, this notification must also be provided in writing to the designated collective bargaining agent. Finally, after Federal immigration officials have conducted their inspection, employers must also communicate the results of the inspection in a private manner within 72 hours of receiving the results.

Fortunately, the California Department of Labor Standards and Enforcement (“DLSE”) has created a template notice for employers to post once they receive a Notice of Inspection. Please visit https://www.dir.ca.gov/DLSE/Notice_to_Employee.html to download the form.

LBLG Tip:
• Use the DLSE’s template to ensure compliance within 72 hours.
Don’t Re-Verify
Finally, AB 450 prevents employers from re-verifying employment eligibility of a current employee at a time or manner not required by Federal Law.
LBLG Tip:
• When an employee brings in new paperwork, consult with legal counsel to determine whether re-verification is required under Federal Law.
Depending on your views on immigration, California’s new sanctuary workplace law can either be viewed as a necessary protection for undocumented workers in the Age of Trump or an affront to the Federal Government’s ability to enforce U.S. immigration laws. Thankfully, AB 450 does not discriminate based on your political views and issues fines on an equal opportunity basis: Employers who violate AB 450 run the risk of fines anywhere from $2,000.00 – $10,000.00 per violation. Don’t let politics or ignorance of the law impact your bottom line. Keep the DLSE off your back by following the straightforward requirements of AB 450.
Author: Christopher W. Hughes, Esq.