Calif. Employers Still Struggle With State Immigrant Worker Law

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By Laura D. Francis

Employers in California are at the center of what could be a collision between federal and state immigration law.

There’s “no question” that employers feel “stuck somewhere between state and federal law,” Sharokina Shams, vice president of public affairs for the California Restaurant Association, told Bloomberg Law.

California’s Immigrant Worker Protection Act (AB 450) went into effect Jan. 1. It is intended to provide immigrant workers with additional protections during immigration enforcement actions. Immigration and Customs Enforcement audits of nearly 200 employers in San Francisco and Los Angeles.

But for many employers in the state, a lot of questions remain, in particular regarding employers’ obligations when it comes to interacting with immigration enforcement agents.

The first two months the California law was in effect, U.S. Immigration and Customs Enforcement conducted audits of nearly 200 employers in San Francisco and Los Angeles.

AB 450 bans employers from allowing agents into nonpublic areas without a warrant, and employers can’t allow agents access to employee records without a subpoena or warrant. Employers also are banned from rechecking workers’ employment eligibility unless required to do so by law.

“Employers are facing a dilemma in which way to proceed,” Angelo Paparelli of Seyfarth Shaw in Los Angeles told Bloomberg Law.

‘Immigration Enforcement Agent’

What’s an “immigration enforcement agent”? That’s the biggest question even after additional guidance from the state’s attorney general was released in February, immigration attorney Karine Wenger of Fragomen, Del Rey, Bernsen & Loewy in San Diego told Bloomberg Law Feb. 26.

It’s “pretty clear” that AB 450 applies to ICE agents, Wenger said. But guidance materials from California Attorney General Xavier Becerra suggest they’re not the only ones covered, she said.

An advisory from the attorney general’s office gives ICE agents as an example of the types of agents who need a warrant. A template from the California Labor Commissioner that employers can use to provide notice to employees of audits also indicates that the law contemplates its application to agents outside of ICE.

Employers also are subject to site visits by officers from U.S. Citizenship and Immigration Services’ Fraud Detection and National Security Directorate, she said, and whether the California law applies to them is less clear.

FDNS officers perform unannounced site visits to verify that the information on an employment-based visa petition is accurate. That includes checking to see if the foreign worker is performing the type of work described in the petition and is working in the location specified there.

But AB 450 prohibits employers from granting immigration enforcement agents access to nonpublic areas without a judicial warrant. “Until such time that there is further clarification, employers do have to weigh the risks” of blocking FDNS officers’ access in an attempt to comply with the state law, Wenger said.

“If a California employer refuses access to FDNS inspectors under the auspices of this new law, that may translate to a denial of a petition (in the case of a pre-adjudication site visit) or revocation of a petition (post-adjudication),” USCIS spokeswoman Joanne Talbot told Bloomberg Law in an email Feb. 28.

A representative for the California attorney general’s office didn’t respond to Bloomberg Law’s request for comment.

Internal Audits Problematic

Paparelli also sees potential problems for employers that want to get ahead of ICE and double-check their I-9 forms before they’re audited.

“To what extent are there risks if an employer conducts an internal audit?” he asked.

The federal government encourages employers to audit their own employment verification paperwork to make sure they’re in compliance with federal law before ICE comes knocking. A 2015 joint memorandum from ICE and the Justice Department also advised employers on how to conduct such audits without running afoul of federal anti-discrimination laws.

But AB 450 forbids employers from reverifying current employees’ employment eligibility unless it’s required by the Immigration and Nationality Act. What is considered to be required by the INA is what’s confusing, Paparelli said.

There is no federal provision on reverification “except in narrow instances,” he said. But there is a “flat prohibition” in the INA on continuing to employ someone you know or should have known is undocumented, he said.

That means an employer that doesn’t check to make sure its employees are all authorized to work could potentially be in violation of the INA, Paparelli said.

“We don’t have an explicit provision” in AB 450 that protects employers that want to check workers’ eligibility for that reason, Paparelli said.

Restaurants ‘Grateful’ for Guidance

But for some businesses, the attorney general’s guidance has been helpful.

“AB 450 does add a layer of complication for employers,” Shams said.

Shams said the association was “grateful” for the additional guidance. There possibly will be “a day in the future” when “an employer really is taking every possible step” to comply with state and federal law and violates one or the other, she said. But “it’s such a hypothetical question” at this point, she said.

The association was one of several employer groups that originally opposed AB 450 but changed its position to neutral in September 2017. The shift had to do with original language in the bill that would have made it difficult for employers to use the E-Verify electronic employment verification system, Shams said.

“Overall, the California Restaurant Association believes that people who are in the country, working hard, paying taxes, and otherwise obeying all the laws should be afforded a pathway to legalization,” Shams said. “We of course support the concept behind AB 450, the spirit behind the law, of protecting workers who are in this country,” she said.

Labor Federation: Law Good for Workers

For workers, the law so far seems to be operating as intended.

“Workers and their unions are being informed of when these audits are happening,” Michael Young, a legislative advocate for the California Labor Federation, told Bloomberg Law Feb. 28.

That gives time for the workers to be aware of their rights during an ICE audit and prepare accordingly, he said. “That notice is key,” he said.

The law also gives workers and their labor unions the opportunity to work with employers to correct any incorrect information that may be in the I-9 paperwork or government records, before they lose their jobs, Young said.

Immigrant workers are “a pivotal part of our economy,” and the law helps provide guidance to employers on how to respond to federal immigration audits while protecting workers’ rights, he said.

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