WORKPLACE LAW – Update to Employer Response to Immigration Audit

Question: I read in a recent Workplace Law article that I cannot voluntarily consent to an ICE agent accessing nonpublic areas of the worksite or employee records without a warrant. Is that still true?

Answer: Not entirely. Due to a July 2018 preliminary injunction issued by the U.S. District Court of the Eastern District of California, employers may allow ICE agents to access nonpublic areas of the workplace and access employee records without a warrant or subpoena.

As background, effective January 1, 2018, California’s Immigrant Worker Protection Act (AB 450) imposed new duties on employers facing worksite immigration inspections. AB 450 provides that an employer will be fined up to $10,000 per violation if it engages in the following:
• voluntarily consenting to ICE agents accessing any non-public areas of a worksite unless the agents present a judicial warrant;
• voluntarily allowing ICE agents to access, review, or obtain any employee records unless the agents present a Notice of Inspection of Forms I-9, and a subpoena, or a judicial warrant requiring compliance; and
• reverifying the employment eligibility of any current employee unless required by federal law.

In response to AB 450, the federal Department of Justice sued the State of California arguing that AB 450 forced California employers to choose between following federal law or state law at the risk of facing state penalties, and as such prevented federal law from being followed. On July 5, 2018, the U.S. District Court of the Eastern District of California granted a preliminary injunction prohibiting California from fining employers who voluntarily grant ICE access to their worksite or employee records, stating, “The Court finds that a law which imposes monetary penalties on an employer solely because the employer voluntarily consents to federal immigration enforcement’s entry into nonpublic areas of their place of business or access to their employment records impermissibly discriminates against those who choose to deal with the federal government.”

The Court did not block another provision of AB 450 that requires employers to notify employees concerning I-9 form inspections. Employers must still provide employees with notification of an inspection of I-9 forms or other employment records by federal immigration authorities, within 72 hours of receiving notice of the inspection. The notice must contain the following:
(1) name of the immigration agency conducting the inspection;
(2) date the employer received notice of the inspection;
(3) nature of the inspection; and
(4) a copy of the notice of inspection.
Within 72 hours of receipt of the inspection’s results, employers must provide each affected current employee with the inspection results, and give each affected employee a second written notice setting forth:
(1) all deficiencies identified in the inspection results;
(2) the time period for correcting any deficiencies;
(3) the time and date of any meeting with the employer to correct deficiencies; and
(4) notice that the employee has a right to representation during the meeting with the employer.

The Court’s ruling is a preliminary injunction and will likely be appealed. For now, employers will not be fined or be in violation of California law if they grant ICE agents access to nonpublic areas of the worksite without a warrant or subpoena, or allow them to access employee records. However, employers may still require a warrant before admitting ICE agents to nonpublic areas or before granting access to employee records.