IMMIGRANT WORKER PROTECTION ACT
RESTRICTS IMMIGRATION ENFORCEMENT AT WORKSITES
In 2017, Governor Brown signed the Immigrant Worker Protection Act (IWPA) which took effect on January 1, 2018.
IWPA was California’s response to the anticipated increase in federal immigration enforcement efforts under the Trump administration and was aimed at providing workers some protections from federal immigration enforcement actions in the workplace.
In brief, the Act regulates the level of workplace access employers are permitted to provide to immigration enforcement officials and requires notification to employees of immigration enforcement efforts.
- Prohibits all California employers, regardless of size, from allowing immigration enforcement agents to enter nonpublic areas without a judicial warrant, or to access, obtain or review employee records without a subpoena or judicial warrant;
- Requires employers to notify employees before and after certain I-9 inspections take place;
- Prohibits employers from improperly reverifying employees’ employment eligibility.
The first protection in the Act provides that employers are prohibited from providing access to U.S. immigration enforcement agents to enter nonpublic areas of a place of labor, unless the agent provides a judicial warrant that is signed by a judge. The employer can take an ICE agent to a nonpublic area to verify the warrant, as long as no employees are present and the employer doesn’t provide consent to search nonpublic business areas in the process.
An “administrative warrant” for the arrest of a particular individual for immigration violations, which has been signed by a Department of Homeland Security immigration officer, does not satisfy the law’s requirement for a judicial warrant.
No Access or Review of Records
The second aspect of the Act provides that an employer is prohibited from providing an immigration enforcement agent who makes a request to access, review or obtain employee records or information contained within those records, unless the agent first presents a subpoena or judicial warrant. A subpoena need not be signed by a judge, and may be signed by an authorized immigration officer.
The requirement for a subpoena or judicial warrant does not apply where the federal agent seeks to obtain I-9 eligibility verification forms through the service of a Notice of Inspection (NOI). In these instances, certain notice obligations are triggered. For more information on completing I-9 forms, click here.
Notice to Employees
Upon Receipt of a NOI
Within 72 hours of receiving a Notice of Inspection, California employers must post a notice to all current employees informing them of any federal immigration agency’s inspections of Forms I-9 or other employment records. The posting notice must include:
- The name of the immigration agency conducting the inspection;
- The date the notice was received;
- The nature of the inspection; and
- A copy of the NOI.
Upon Receipt of Inspection Results
Within 72 hours of receiving the inspection results employers must provide each “affected employee” (and the employees authorized representative – e.g. union representative) with a copy of the written immigration agency notice requiring inspection, the result of such inspection if an employee is impacted and obligations of the employee as a result. The written notice must be hand-delivered in the workplace, if possible. The notice must contain:
- A description of the error(s) or deficiencies that the government is alleging with regard to the employee;
- How much time the employee has to correct the error or deficiencies;
- When and where the employee can meet with the employer to correct any identified deficiencies; and
- The employee’s right to representation during the meeting.
An “affected employee” is an employee identified by the inspection results as an employee who may lack work authorization or whose employment eligibility documentation may have deficiencies.
Labor Commissioner’s Provides Template Notice Form
The California Labor Commissioner’s Office’s was tasked with creating a form and has just recently published the form in a template, which provides an easy-to-use option for employers to comply with the notice provisions of the act.
The electronically fillable template is user-friendly.
The template is available on the Department of Industrial Relations website at https://www.dir.ca.gov/DLSE/LC_90.2_EE_Notice.pdf.
A Spanish version is also available at https://www.dir.ca.gov/DLSE/LC_90.2_EE_Notice_Spanish.pdf.
An employer that fails to comply with any of the notice requirements can be fined between $2,000 to $5,000 for a 1st violation and $5,000 to $10,000 for each subsequent violation. In addition, federal penalties for Form I-9 violations can exceed $20,000.
What Should I Do Now?
Because there is likely to be confusion if an immigration enforcement agent arrives at the work-site it is imperative to be prepared and understand the strict requirements of the IWPA. Employers should:
- Train employees who are likely to interact with legal authorities at the work-site as to the prohibition against voluntarily granting access to immigration enforcement agents without a proper judicial warrant.
- Employers should take all necessary steps to evaluate who is making the request and review the documentation presented before allowing access to nonpublic premises.
- Create a process to meet the pre- and post-inspection 72 hour notice requirements.
- Audit your Form I-9’s and ensure compliance before an inspection occurs.