The California legislature and Governor Jerry Brown have once again entered the immigration fray.
This foray is not about the its Sanctuary State legislation, recently enacted, and promptly decried as “unconscionable” by U.S. Attorney General Jefferson Beauregard Sessions III, 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.
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 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 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 feigning its fealty to federal immigration law. Replete in the law are exceptions stating that these new mandates are not to be interpreted as requiring the employer to violate federal immigration law. California’s political leaders apparently believe that U.S. immigration rules– in the aspirational words of the Fifth Circuit court federal Court of Appeals – are “comprehensible by intelligent laymen and unspecialized lawyers without the aid of both lexicon and inner-circle guide.”
Regrettably, they are anything but. The court said in this 1981 decision in words that ring ever more true today:
Whatever guidance the [immigration] regulations furnished to those cognoscenti familiar with procedures, this court . . . finds that they yield up meaning only grudgingly and that morsels of comprehension must be pried from mollusks of jargon. Kwon v. INS, 646 F. 2d 909 (5th Cir., 1981). (Emphasis added.)
AB 450’s supporters, the California Labor Federation and Service Employees International Union, defend the law because it adds what they see as reasonable but necessary burdens on employers in order to protect the state’s sizable population of undocumented employees from immigration raids and the abusive practices of some employers:
“[M]illions of union members are immigrants and worksite immigration raids undermine workers’ rights in significant ways: they drive down wages and labor conditions for all workers, regardless of immigration status; they interfere with workers’ ability freely to exercise their workplace rights; they incentivize employers to employ undocumented workers in substandard conditions because the threat of immigration enforcement prevents workers from complaining; they undermine the efforts of the state to enforce labor and employment laws.”
However laudable this legislative goal, AB 450 would be better titled, the “Have Your Immigration Lawyer on Speed Dial Act,” because that is how this new law will likely play out. This is probably why the Society for Human Resource Management (SHRM) steadfastly opposed AB 450, stating:
“[W]hile well intentioned, [AB 450] will add a host of unnecessary burdensome requirements, create many logistical challenges, and could possibly force human resource professionals to decide between abiding by federal law or state law.”
Consider some of the issues this new law will raise.
Role of California State courts to interpret federal immigration laws? AB 450 grants the California Labor Commissioner or the state’s Attorney General the exclusive authority to initiate civil actions to enforce its provisions. Assuming that the courts find that this law can peacefully coexist with Congress’s plenary authority over immigration law, then presumably California state courts will now be required to decide whether or not particular actions by employers are “required” by federal immigration law.
Distinguishing between a subpoena and a judicial warrant? AB 450 permits employers to grant federal immigration officers access to non-public worksite areas if the employer is presented with a “judicial warrant.” Access to a company’s employee records, however, is not prohibited under the law if immigration officers tender to the employer a “subpoena or judicial warrant.” Few employers likely realize, however, that a subpoena may be issued by a court or by administrative agency officials.
Under Immigration and Nationality Act § 235(d)(4); 8 U.S.C. §1225(d)(4), immigration officers are empowered to issue administrative subpoenas for books and records. If an employer, however, refuses to comply with an administrative subpoena, then immigration officials can only enforce it if they persuade a federal judge to issue a judicial order. Yet – in the real world – when federal immigration agents issue an administrative subpoena carrying an official federal seal and, by its terms, mandating access to business records, pity the unsophisticated HR manager who violates California law if s/he “voluntarily” provides the business’s employee records.
Good faith immigration compliance and voluntary internal audits? DOJ and DHS component agencies encourage employers to voluntarily conduct internal immigration-compliance audits, and prescribe procedures to correct I-9 paperwork errors, and to reasonably investigate circumstances suggesting that an employee may lack employment authorization. Such audits sometimes require the cooperation of current employees, as, for example, if corrections must be made to the employee portion of the I-9, section 1, or if the employer suspects that the documents of identity and employment eligibility that the employee previously presented may not be genuine.
Given that AB 450 prohibits reverifying a current employee’s eligibility to work in the United States, should California employers defensively adopt “head in the sand” policies to preclude or discourage voluntary immigration compliance audits?
The answer will depend on the employer’s business circumstances and employment practices in the particular industry. It may also turn on whether an employer has become aware of facts or credible assertions that call into question the employment eligibility of one or more employees.
Under the constructive-knowledge rule, an employer will be deemed to know whatever could have been discovered if a reasonable investigation had been conducted. Thus, if an employer declines to investigate suspicious circumstances suggesting unauthorized employment, ICE can maintain that an employer has violated federal law because company officials should have known that the business had hired or continued to employ a worker while aware that the individual had no right to be employed in the United States. Consequently, as SHRM feared, AB 450 will “force human resource professionals to decide between abiding by federal law or state law.”
Unintended harm to workers, their unions, and business operations? While the constructive-knowledge rule, in effect, requires an employer to conduct a reasonable investigation, the rule does not dictate the speed of the investigation. In past ICE investigations, some field offices have expressly allowed an employer time to respond to an NSD by phasing-in the duration of time when workers whose employment eligibility has been questioned must reverify their employment eligibility. A compliance phase-in would give the employer time to reverify its challenged employees in tranches. Without internally posting a notice to employees that ICE has begun in I-9 investigation, an employer granted phase-in permission by ICE would (a) privately and without fanfare reverify the employment eligibility of its most recently hired or least skilled workers, (b) speedily hire replacements (who would quickly be trained by employees with longer tenure or greater expertise in the operations of the business), and (c) then reverify the most senior or essential workers.
In this way, employers could conduct a constructive-knowledge investigation sequentially over time, business operations could continue with less disruption, the most valued employees could continue in employment for the time being, and unions would continue to receive dues payments, while retaining the ability to negotiate severance packages for terminated employees.
What, then, is the likely outcome of AB 450’s requirement that the employer give public notice to all employees and the local union that ICE has served a NOI? Today, many employers have found that when employees learn of an ICE worksite investigation, they quickly disappear for fear of arrest and deportation. Leaving the employer in the lurch, an unknown number of undocumented workers merely purchase new identities and forms of work permission on the street – documentation that will appear to be genuine and thus used to get a new job with the next employer. And so the cycle continues. Rinse and repeat. Consequently, and the 72-hour NOI notice requirement in AB 450 will likely only serve to disrupt businesses and prompt short-and long-term undocumented workers to switch jobs, while shrinking the duration of dues payments to unions.
A bonanza for translators? AB 450 requires employers, within 72 hours of receiving an NOI, to post a notice at the worksite in the language the employer normally uses to communicate employment-related information to employees, announcing that ICE has served an NOI on the employer, and providing other required details. Although not clearly phrased, the posting obligation seems to include the duty to provide a translation of the NOI itself into the language(s) ordinarily used to communicate with employees.
California is a state that prides itself on its diversity, which necessarily entails a noncitizen population speaking a multiplicity of languages. Many workers in the state do not speak English well, but do speak a native language, be it Spanish, Chinese, Tagalog, Vietnamese, Armenian, Khmer, Farsi, or Russian, among others.
Heaven forbid that ICE serves an NOI on a Friday. This will likely leave many an employer scrambling first to draft the AB 450 notice, and then to find weekend translators capable of quick turnaround to produce the required translations. Perhaps competent translators can be found, but probably only at a premium price for speedy, afterhours delivery.
The drafters of the legislation apparently did not realize, however, that ICE officers are usually quite willing to extend its own 72-hour regulatory deadline by a week or two for an employer to turn over its I-9s and other required records, or even longer, if the employer can provide a reasonable explanation for its inability to satisfy the 72-hour rule.
California lawmakers made no provision for extension of the posting deadline in AB 450. It therefore doesn’t take a Hollywood scriptwriter to visualize how this might play out:
(Scene 1) Mid-day on a Friday afternoon, ICE serves the employer with the NOI,
(Scene 2) The employer scrambles to find a lawyer as the weekend begins who will help word the AB 450 notice,
(Scene 3) The employer also scrambles to locate translators to prepare translations into multiple languages,
(Scene 4) On Monday afternoon, just hours before the AB 450 72-hour deadline, the employer posts the translations on the employee bulletin board,
(Scene 5) The workers read the posting, interpret it as a “run notice,” and flee the building,
(Scene 6) ICE officers – aware of the California statutory deadline – are poised in the parking lot to apprehend the fleeing workers and process them for deportation, and
(Scene 7) the factory is idle on Tuesday morning, except for the angry voices of union bosses complaining to management about unfair labor practices.
* * *
AB 450 is not the first California encroachment on federal immigration law, and not likely the last. As the courts, federal immigration agencies, and the NLRB are left to sort out federal from state legal rights and duties amid the detritus of this law, California politicians will likely be at it again, figuratively quoting a former governor’s thespian line: “[We’ll] be back!”