Private employers received good news this month when a federal
court temporarily stopped the state of California from enforcing
most of a new law that restricts an employer's ability to
cooperate with officers who enforce federal immigration laws. This
new California law is known as Assembly Bill 450 or the
"Immigrant Worker Protection Act". It became
effective in January 2018. As we explained in an
The U.S. government responded to the new state law by suing the
state of California and asking the federal court to strike down the
law. The federal government asserted that the state was interfering
with the regulation of immigration matters and enforcement. The
lawsuit sought relief from the state law only as to private
employers in California, not for public employers. Private Employers in California now Free to
Cooperate with Federal Immigration Enforcement
Agents: For at least a temporary period, the federal
court has ordered California to stop
restricting private employers from cooperating with federal agents.
California also may not enforce state law restrictions on when an
employer may complete an I-9 reverification. In issuing this
temporary order, the court recognized that the California law has
placed employers in a "precarious situation" when
interacting with federal agents. In many circumstances, it is in
the employer's interest to cooperate with federal agents who
are investigating immigration issues or taking worksite enforcement
actions. This cooperation can result in limiting the scope of the
federal enforcement action and in shortening its duration. The
federal fines and/or penalties also may be significantly reduced.
Yet, under the new California law, the employer will be subject to
substantial fines if it cooperates – from $2,000 to $10,000
per state law violation. As the court stated, the California law
"impermissibly discriminates" against employers who
voluntarily cooperate with federal immigration enforcement agents.
California's attempt to regulate I-9 reverifications also
conflicts with federal law. In addition to these concerns, the California law is troublesome
because it is unclear. The law does not define who is an
"immigration enforcement agent" – the person with
whom the employer may not cooperate. Officers in Immigration and
Customs Enforcement (ICE), Homeland Security Investigations (HSI),
and U.S. Customs and Border Protection (CBP) are likely in this
group. Yet it is unclear whether officers who make immigration
benefit decisions and other types of officers are "immigration
enforcement agents." For example, employers may file petitions
with U.S. Citizenship and Immigration Services (USCIS) to seek
authorization to hire foreign nationals as employees. In doing so,
the employers promise to cooperate with USCIS in later
investigations, including to produce records and allow access to
worksites before or after favorable decisions in the immigration
cases. The Fraud Detection and National Security (FDNS) officers of
USCIS make random, unannounced site visits to these employers.
Refusing to allow FDNS officers access to the worksite or to
certain employee records could result in USCIS's reopening of
the immigration case, commencing a broader investigation, and/or
revoking the employment authorization. For many reasons, the
temporary injunction is therefore welcome relief to the untenable
circumstances facing employers caught between federal and state
laws. Notice Requirement in New Law Still in
Effect: The federal court allowed the new
California notice requirement to remain. California employers now
must inform employees within 72 hours after the employer receives
notice that immigration enforcement agents will conduct an I-9
inspection or other investigation. The employer also must inform
each affected employee of the results of the I-9 inspection or
other government audit within 72 hours of receiving those results.
An affected employee is one who is identified as lacking employment
authorization or whose employment authorization documents have
deficiencies. The federal government has strongly objected that the
notice provision undermines its investigations. The court, however,
has allowed the notice provision to stand for now. Litigation Continues: This dispute
over California's effort to regulate the interactions of
private employers with federal immigration enforcement agents is
far from over. Whoever loses at the upcoming trial is likely to appeal to a
higher level court. For now, the federal trial court has given
private employers much needed relief from the "precarious
situation" created by this new state law. The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
ARTICLE
26 July 2018
Good News For Private Employers In California: Federal Court Temporarily Enjoins Several Provisions Of New Law Prohibiting Cooperation With Immigration Enforcement Agents
Private employers received good news this month when a federal court temporarily stopped the state of California from enforcing most of a new law that restricts an employer's ability to cooperate...