Immigration Audits and New Laws Impacting California Employers
2018 Rings in Increases in Federal Immigration Audits
New Requirements for California Employers
Increase in worksite immigration audits; sanctions against employers anticipated
In October 2017 Acting Director of U.S. Immigration and Customs Enforcement (ICE) Thomas Homan announced the agency’s plan to increase worksite immigration enforcement actions (I-9 Employment Eligibility Verification audits and worksite raids) by four to five times current levels in the next fiscal year. Mr. Homan warned that ICE will not only detain and remove undocumented workers, but will also prosecute the employers who hire them.
Civil monetary penalties for I-9 violations nearly doubled
Fines for I-9 paperwork violations nearly doubled last year, now ranging from $220 to $2191 per I-9. Fines for employers who either knowingly hired an undocumented individual or continue to employ such an individual now range from $548 to $21,916 per unauthorized worker. In addition to the civil monetary penalties employers may also face debarment from various federal programs, as well as criminal prosecution.
California’s Immigrant Worker Protection Act – Effective January 1, 2018
In California, employers must now also ensure compliance with the Immigrant Worker Protection Act (IWPA). Signed into law as Assembly Bill 450 by Governor Jerry Brown in October 2017 and effective January 1, 2018, the IWPA imposes various requirements on both public and private employers relating to federal immigration agency immigration worksite enforcement actions:
– Warrant required to enter worksite: The law prohibits an employer from providing voluntary consent to an immigration enforcement agent to enter nonpublic areas of the worksite, unless the agent provides a warrant.
– Subpoena required to provide employee records: The law prohibits an employer from providing voluntary consent to an immigration enforcement agent to access, review, or obtain employee records, unless the agent presents a subpoena or court order. However, there is an exception for I-9 forms and other documents if the agent provided the employer with a Notice of Inspection.
– Notice to employees required: The law requires an employer to provide current employees with notice of an immigration agency I-9 or other employment record audit within 72 hours of receiving the federal notice of inspection from the agency. The Labor Commission is required to create a template for notice to employees by July 1, 2018. Until then, employers must use their best judgment to provide written notice to employees of a worksite enforcement action within the required time period.
– Copy of Notice of Inspection to employees: The law requires an employer, upon reasonable request, to provide each affected employee a copy of the I-9 Notice of Inspection.
– Copy of Results of Audit to employees: The law requires an employer to provide each affected current employee, and collective bargaining representative, if applicable, a copy of the agency’s written inspection results and written notice of the obligations of the employer as it applies to the employee.
– Prohibits improper re-verification: The law prohibits an employer from re-verifying the employment eligibility of a current employee at a time or in a manner not required by federal law.
The IWPA does state that the above restrictions apply “except as otherwise required by federal law” and specifies that “an employer’s commitments under an E-Verify Memorandum of Understanding remain controlling and in effect.” This opens the door to some confusion for California employers, who must now attempt to determine where federal law and state law conflict, and do their best to comply with both. Further, the IWPA is not without teeth; failure to comply leaves an employer vulnerable to penalties of $2,000 to $5,000 for a first violation and $5,000 to $10,000 for each subsequent violation.
For the above reasons, the law is not without controversy. While Senate amendments to the bill removed opposition from the Chamber of Commerce and other business interests, the Society for Human Resource Management (SHRM) remained opposed to the bill’s passage, stating that “while well intentioned, [the bill] will add a host of unnecessary burdensome requirements, create many logistical challenges, and could possibly force human resource professionals to decide between federal law or state law.”
However, supporters of the bill stressed its necessity in light of current events. As expressed by the bill’s lead author, Assemblyman David Chu, “In an environment of division and fear, California must continue to defend its workers, to guard its values and to ensure that its laws protect all of our residents. The bill declares California’s determination to protect our economy and the people who are working hard to contribute to our communities and raise their families in dignity.”
For more on the IWPA and Worksite Enforcement issues, including Best Practices, see the very comprehensive article by John Fay, VP and General Counsel at the LawLogix division of Hyland Software Inc.: https://www.lawlogix.com/employers-prepare-themselves-for-the-i-9-squeeze/.