When ICE officers show up at a business and request access to the premises or to see employment records, it is the natural reaction of most employers to fully cooperate, regardless of concern about the potential impact on the wellbeing of their employees. After all, ICE (technically the U.S. Immigration and Customs Enforcement Agency, which is charged with enforcing U.S. immigration laws) is a police agency, and who doesn’t want to cooperate with the police when they make a seemingly lawful request? And after all, aren’t we legally obligated to open our doors and employment records to inspectors from OSHA, the U.S. Department of Labor or the State Labor Commissioner upon reasonable request?
The answer to the second question is “yes.” Subject to some restrictions, employers must open their shops and employment records to U.S. DOL and state DLSE inspectors. But if you are a California employer, you are now prohibited by law from offering the same cooperation to ICE.
Several recently enacted California laws forbid employers from certain types of cooperation with ICE and impose substantial fines against employers who violate these laws. New California Government Code sections 7285.2 and 7285.3 prohibit employers from allowing ICE agents to “enter any nonpublic areas of a place of labor” or (except for I-9 Employment Eligibility Verification forms, which are subject to Federal law) to “access, review or obtain” employee records “without a subpoena or judicial warrant.” That is, unless they have a subpoena or warrant, employers generally cannot let ICE officers into their facility other than the reception area and cannot show ICE officers any employment records other than I-9 forms. The penalty for violation of the new law is $2,000-$5,000 for a first offense, and up to $10,000 for subsequent offenses.
The I-9 exception to the “no-cooperation with ICE” rule recognizes that federal law requires employers to comply, and state law usually cannot override federal law. But the state law can and does require strict compliance by ICE with the I-9 regulations. Under existing federal regulations, which still apply, ICE must provide employers with a Notice of Inspection indicating its intent to inspect I-9 forms at least three business days in advance of the inspection. California employers must insist upon the formality of a written Notice of Inspection in order to comply with other new laws, discussed below. After receipt of a proper Notice of Inspection, the employer must allow inspection of the requested I-9 forms, but only the I-9 forms. ICE frequently includes requests for records other than just the I-9 forms when it issues a Notice of Inspection. Often ICE requests payroll records and a list of all current employees. California employers may not produce records other than the I-9 forms, even if they are requested by ICE through a formal Notice of Inspection. A Notice of Inspection is not a “subpoena or judicial warrant” sufficient to allow the employer to comply without violating the new state law.
A California employer which is served with a Notice of Inspection of I-9 records is also subject to new California Labor Code section 90.2. That section requires employers which receive such a Notice to notify “each current employee” within 72 hours of receipt of the inspection request, of the details of the request. (See the text of the law for specifics of what the employer notification must contain and how it must be delivered.) Violation of section 90.2 is subject to the same financial penalties described above. Obviously, an employer can only give the required notice to its employees if it has received from ICE a formal Notice of Inspection allowing three days to comply, and even then, the employer must give the notice to its employees immediately upon receipt of the Notice from ICE.
Finally, new Labor Code section 1019.2 provides that “Except as otherwise required by federal Law,” a California employer “shall not reverify the employment eligibility of a current employee at a time or in a manner not required by Section 1324a(b) of Title 8 of the United States Code.” The penalty for violation is up to $10,000. Employers should be aware that the caveats for compliance with federal law included in section 1019.2 add significant complexity to this new provision of the Labor Code, and employers considering re-verification of eligibility of any employee for any reason should proceed with caution and may be well served to first consult with their attorney.
The obvious tension between the policies of the administration in Washington and those of the California legislature is not likely to abate anytime soon, and will continue to put businesses and employers at jeopardy of inadvertent violation of state law while trying to comply with federal law, or vice-versa. Cooperation with ICE inspections, which might seem like good corporate citizenship, may actually result in fines and penalties. As has always been the case, and is now even more evident, California employers must exercise caution in all decisions or policies having any potential impact on their employees.
The text of the new laws and the Legislative Counsel’s Digest can be found here:
Bryan Sheldon is a partner in the Los Angeles office of LimNexus LLP, where he practices commercial litigation and trials. He is co-chair of the firm’s Litigation Department and serves as the firm’s Administrative Partner. Mr. Sheldon’s clients include regional, national and international companies and he is always on the lookout for legal traps and pitfalls which might ensnare them.