In October 2017, Governor Brown has signed into law a number of significant employment-related bills that will impact California workplaces.
One of the laws passed is AB 450, which is also known as the Immigrant Worker Protection Act.
California’s new law, Assembly Bill 450, imposes several new immigration-related duties on California employers and the potential for civil fines.
Under AB 450, employers are required to understand or seek guidance on where the new law ends and federal immigration law begins.
The complexities of U.S. immigration law present a few challenges in drawing the distinction.
Effective January 1, this year, this law provides worksite immigration protection for employees while on the job.
Immigrant Worker Act Provisions
Under AB 450, all public and private employers in California are prohibited from:
- Providing federal immigration enforcement agents access to nonpublic areas without a judicial warrant;
- Providing agents access to employee records without a subpoena or judicial warrant; and
- Re-verifying an employee’s eligibility to work unless specifically required by federal statutory law.
- Voluntarily consenting to allow an immigration enforcement agent to enter non public areas of a workplace, except if the agent provides a judicial warrant or as otherwise required by federal law.
Also pursuant to this law, employers can take an immigration agent to a nonpublic area in order to verify whether the agent has a judicial warrant, so long as no employees are present in the area and no consent to search non public areas is given in the process.
Moreover, AB 450 will start requiring employers to post a notice, within 72 hours of receiving a Notice of Inspection for I-9 Forms by an immigration agency.
The exceptions to this prohibition are Form I-9 employment eligibility verification forms and instances where federal law requires employers to provide access to records.
Violations and Fines
An employer that fails to follow notice requirements will be fined between $2,000 and $5,000 for a first violation. There will be fine between $5,000 and $10,000 for each subsequent violation.
For re-verification of employment eligibility, there is a penalty of up to $10,000.
The notice must be provided in the language the employer normally uses to communicate employment-related information to the employee.
Currently, the notice is available in English and in Spanish.
The notice must be limited to the employee only and must be delivered by hand at the workplace if possible.
If hand-delivery is not possible, the employer must deliver the notice to the employee by mail and email. The notice must also be provided to the employee’s authorized representative.
This notice must include 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.
Once the inspection is over, within 72 hours of receiving the results, employers must give each affected employee a copy of the inspection results and written notice of the employer’s and employee’s obligations arising from the inspection within 72 hours of receiving the results.
How to Avoid these Penalties as an Employer?
As an employer in California, one should have specific policies and procedures pursuant to the changing laws in the state.
The full impact of the imposition of AB 450 on public and private employers in California and their interaction with federal immigration enforcement agents remains to be seen.
California employers would be wise to take measures to ensure compliance in the face of the new law by considering the following:
- Training managers to ask immigration agents for judicial warrants and subpoenas
- Training managers to comply with new posting and notice requirements as well as post-inspection notice requirements
- Training Human Resources on when it is appropriate to re-verify employees’ employment eligibility status and to ensure that no re-verification of current employees occurs before it is required by federal law
There are numerous consulting firms offering training and education regarding AB 450. One of the best California consulting firms you can rely on is PCS Consultants Inc.
Through the years, PCS Consultants Inc., has assisted countless clients helping them comply to the changing labor laws. Through a massive network of professional consultants that the company has, your firm will get the best service along with a 24 hour support from the experts.
Important Things to Consider
While all U.S. employers would be wise to take preventive measures in the face of these announcements, California employers must deal with new legal obligations courtesy of AB 450.
The new law has three main components.
- First, AB 450 prohibits employers from voluntarily consent to warrantless requests by immigration authorities to search workplaces and employee records.
- Second, it creates notice requirements related to immigration inspections.
- Third, it prevents employers from reverifying the employment eligibility of current employees.
Employers who violate AB 450 will face penalties of up to $10,000 per violation.