Employment Eligibility Verification

Seyfarth Synopsis: California’s new law, Assembly Bill 450, signed by Governor Brown on October 5, and effective January 1, 2018, imposes several new immigration-related duties on California employers and the potential for civil fines. AB 450 will require employers to understand or seek guidance on where the new law ends and federal immigration law begins. The complexities of U.S. immigration law make drawing this distinction very difficult. This blog post provides an in-depth analysis of foreseeable challenges California employers – whether or not they petition for foreign workers – will likely face.

“Mollusks of Jargon”

The California legislature and Governor Jerry Brown have once again entered the immigration fray.

This foray is not about its Sanctuary State legislation, recently enacted, and promptly decried by U.S. Attorney General Jefferson Beauregard Sessions III as “unconscionable”, and by Thomas Homan, Acting Director of U.S. Immigration and Customs Enforcement (ICE), as “[forcing his] hand,” and causing him to “quadruple workplace crackdowns.”

No, the latest California leap into the federal immigration ecospace is Assembly Bill 450, which imposes civil fines on employers ranging from $2,000 to $10,000 per violation for a variety of newly unlawful practices. Signed by Gov. Brown on October 5, 2017, AB 450 stands among a slew of new California laws taking effect on January 1, 2018. AB 450 will add three new sections to the Government Code and two new sections to the Labor Code – 90.2 and 1019.2.

Under the new law, every public and private employer in California, or any person acting on the employer’s behalf, must:

No Fourth Amendment Waiver 

Refrain from waiving Fourth Amendment protections against unreasonable searches and seizures by:

  • granting voluntary consent to enter any non-public areas at a place of labor, except if presented with “a judicial warrant,”
  • granting voluntary consent to an immigration enforcement agent to access, review, or obtain the employer’s employee records without “a subpoena or judicial warrant,” except if an “immigration agency” (most often, this would be Homeland Security Investigations [HSI], an agency of U.S. Immigration & Customs Enforcement [ICE]) issues a Notice of Inspection (NOI) of Employment Eligibility Verification Form I-9s and other records required to be maintained under federal immigration regulations in order to verify employment eligibility;

Posted Notice of Worksite Inspection

 Post a notice at the worksite in the language the employer normally uses to communicate employment-related information to employees, within 72 hours of receiving an NOI, communicating the following information to employees:

  1. An immigration agency, identified by name, has issued an NOI (a copy of which must also be posted at the same time) and will conduct inspections of I-9 forms or other employment records.
  2. The date that the employer received the NOI.
  3. The “nature of the inspection” to the extent known.

Notice to the Union

Give written notice to the “employee’s authorized representative,” namely, the exclusive collective bargaining representative, if any, within 72 hours of the immigration agency’s issuance of an NOI:

  • Delivery of Requested Copy of the Notice. Provide any employee, upon reasonable request, with a copy of the NOI;
  • Provide Notice of Suspect Documents. Within 72 hours of the employer’s receipt of a written immigration agency notice informing the employer of the results of the agency’s inspection of the I-9s and the employer’s employment records, typically entitled, a “Notice of Suspect Documents” (NSD), provide a written notice to certain “affected employees” who apparently lack work eligibility (and any collective bargaining representative) of the obligations of the employer and the affected employees, containing the following information:
  1. A description of any and all deficiencies or other items identified in the written immigration inspection results notice related to the affected employee.
  2. The time period for correcting any potential deficiencies identified by the immigration agency.
  3. The time and date of any meeting with the employer to correct any identified deficiencies.
  4. Notice that the employee has the right to representation during any meeting scheduled with the employer.

No Re-Verifying Current Employees

 Refrain from re-verifying the employment eligibility of a current employee at a time or in a manner not required by the employment eligibility verification provisions of the Immigration Reform and Control Act of 1986, 8 USC § 1324a(b), or that would violate any E-Verify Memorandum of Understanding the employer has entered into with the Department of Homeland Security.

* * *

To be sure, AB 450 offers sops feigning fealty to federal immigration law. Replete in the law are exceptions stating that these new mandates are not to be interpreted as requiring the employer to violate federal immigration law. California’s political leaders apparently believe that U.S. immigration rules – in the aspirational words of the Fifth Circuit court federal Court of Appeals – are “comprehensible by intelligent laymen and unspecialized lawyers without the aid of both lexicon and inner-circle guide.”

Regrettably, they are anything but. The court said in this 1981 decision in words that ring ever more true today:

Whatever guidance the [immigration] regulations furnished to those cognoscenti familiar with procedures, this court . . . finds that they yield up meaning only grudgingly and that morsels of comprehension must be pried from mollusks of jargonKwon v. INS, 646 F. 2d 909 (5th Cir., 1981). (Emphasis added.)

AB 450’s supporters, the California Labor Federation and Service Employees International Union, defend the law because it adds what they apparently see as reasonable but necessary burdens on employers in order to protect the state’s sizable population of undocumented employees from immigration raids and the abusive practices of some employers:

“[M]illions of union members are immigrants and worksite immigration raids undermine workers’ rights in significant ways: they drive down wages and labor conditions for all workers, regardless of immigration status; they interfere with workers’ ability freely to exercise their workplace rights; they incentivize employers to employ undocumented workers in substandard conditions because the threat of immigration enforcement prevents workers from complaining; they undermine the efforts of the state to enforce labor and employment laws.”

However laudable this legislative goal, AB 450 would be better titled, the “Have Your Immigration Lawyer on Speed Dial Act,” because that is how this new law will likely play out. This is probably why the Society for Human Resource Management (SHRM) steadfastly opposed AB 450, stating:

“[W]hile well intentioned, [AB 450] will add a host of unnecessary burdensome requirements, create many logistical challenges, and could possibly force human resource professionals to decide between abiding by federal law or state law.”

Consider some of the issues this new law will raise.

Role of California state courts to interpret federal immigration laws? AB 450 grants the California Labor Commissioner or the state’s Attorney General the exclusive authority to initiate civil actions to enforce its provisions. Assuming that the courts find that this law can peacefully coexist with Congress’s plenary authority over immigration law, then presumably California state administrative officials and courts will now be required to decide whether or not particular actions by employers are “required” by federal immigration law.

Distinguishing between a subpoena and a judicial warrant? AB 450 permits employers to grant federal immigration officers access to non-public worksite areas if the employer is presented with a “judicial warrant.” Access to a company’s employee records, however, is not prohibited under the law if immigration officers tender to the employer a “subpoena or judicial warrant.” Few employers likely realize, however, that a subpoena may be issued by a court or by administrative agency officials.

Under Immigration and Nationality Act § 235(d)(4); 8 U.S.C. §1225(d)(4), immigration officers are empowered to issue administrative subpoenas for books and records. If an employer refuses to comply with an administrative subpoena, however, then immigration officials can only enforce it if they persuade a federal judge to issue a judicial order. Yet – in the real world – when federal immigration agents issue an administrative subpoena carrying an official federal seal and, by its terms, demanding access to business records, pity the unsophisticated HR manager who violates California law if s/he “voluntarily” provides the business’s employee records.

Who are “immigration enforcement agents?” AB 450 does not define the term “immigration enforcement agent.” The phrase undoubtedly refers to officers of ICE and HSI. Less clear is whether other federal immigration officers should be characterized as immigration enforcement agents under this law. Federal officers with immigration enforcement authority — all of whom have taken an oath to “well and faithfully discharge [their] duties” — may hail from any number of Executive Branch departments and agencies. Under 8 CFR § 1.2, USCIS has set forth a broad definition of DHS employees who are designated by regulation as “immigration officer[s].” These include: “immigration enforcement agents, forensic document analysts, immigration agents (investigations), immigration enforcement agents, immigration inspectors, immigration officers, immigration services officers, investigator, intelligence agents, intelligence officers, investigative assistants, and special agents, among others.”

Conceivably, AB 450, by its terms, could also extend to federal officials performing immigration functions within the Departments of State, and Labor. Moreover, the current practice of one Department of Homeland Security  (DHS) sub-component, the Fraud Detection and National Security (FDNS) Directorate of United States Citizenship and Immigration Services (USCIS), to conduct unannounced “administrative site visits” or “on-site compliance reviews,” raises immediate concerns about its officers’ future interactions with California employers.

Although FDNS asserts that it is not an immigration enforcement agency, a current job opening for the position, “Immigration Officer (FDNS),” – accessible here, and if the posting is taken down, also here – confirms that, “[every] day, our Immigration Officers (FDNS) . . . identify, articulate, and pursue suspected immigration benefit fraud.” Moreover, employers seeking to hire foreign workers must sign petitions under penalty of perjury for virtually every request for immigration benefits submitted to USCIS, requests which contain the acknowledgment, “I also recognize that any supporting evidence submitted in support of this petition may be verified by USCIS through any means determined appropriate by USCIS, including but not limited to, on-site compliance reviews,” see e.g., the Petition for a Nonimmigrant Worker (Form I-129 Part 7, p. 6).

Indeed, the tasks of immigration site inspectors, according to FDNS, are to:

  • Verify the information, including supporting documents, submitted with the petition;
  • Verify that the petitioning organization exists;
  • Review public records and information on the petitioning organization;
  • Conduct unannounced site visits to where the beneficiary works;
  • Take photographs;
  • Review documents;
  • Speak with the beneficiary [the nonimmigrant worker sponsored under an employment-based petition by an employer]; and
  • Interview personnel to confirm the beneficiary’s work location, physical workspace, hours, salary and duties. (Emphasis added.)

The conceit asserted by FDNS that it is not an immigration enforcement agency is also belied by this disclosure on its website:

USCIS has formed a partnership with Immigration and Customs Enforcement (ICE), in which FDNS pursues administrative inquiries into most application and petition fraud, while ICE conducts criminal investigations into major fraud conspiracies. (Emphasis added.)

Even if a line can fairly be drawn between FDNS’s pursuit of immigration fraud and ICE’s activities in conducting criminal investigations, the use by AB 450 of the term, “immigration enforcement agent,” suggests at the very least an agency relationship between FDNS (the agent) and ICE (the principal).

Thus, a California employer could well face liability under AB 450 if it voluntarily consents to an FDNS officer’s request for access to the beneficiary’s “physical workspace,” the opportunity take to “take photographs” of the workspace (which routinely happens), and conduct a “[r]eview [of] records.” Yet, if a California employer were to refuse such a request, FDNS officers will no doubt report that refusal to USCIS adjudicators, who then routinely issue a notice of intent to deny or revoke work-visa petition approval. Notices of intent to revoke approval are especially problematic, because if they cannot be overcome in light of the obvious state law impediments in AB 450, then USCIS will revoke the employment authorization of the particular beneficiary. The result of a revocation is that the employee must be terminated upon the employer’s receipt of the notice of revocation, and that termination may constitute a failure on the part of the beneficiary to maintain lawful nonimmigrant status, which itself would trigger an obligation to depart the United States immediately with his or her immediate family members, or face removal from the United States at a hearing initiated by ICE before an Immigration Judge.

These problems become even more complicated if the employer provides facilities for its own workers and for the employees of any of its contractors, consultants, staffing companies, or vendors. While AB 450 does not prohibit a California employer from voluntarily sharing whatever information it might possess about the employees of its contractors, this new law, by its terms, mandates, on penalty of civil fine, that the employer refuse to grant voluntary consent to “enter any non-public areas at a place of labor” – apparently irrespective of the party employing the particular workers at the place of labor. Such a refusal likewise under current USCIS practice would lead to a similarly insurmountable notice of revocation, thereby terminating the employment authorization and nonimmigrant status of a contractor who was the subject of an FDNS unannounced site visit, and conceivably, resulting in a breach of contract by the customer for precluding the vendor from fulfilling the object of the contract, i.e, the rendition of contractually-agreed services.

Good faith immigration compliance and voluntary internal audits? DOJ and DHS component agencies encourage employers to voluntarily conduct internal immigration-compliance audits, and prescribe procedures to (a) correct I-9 paperwork errors, and (b) reasonably investigate circumstances suggesting that an employee may lack employment authorization. Such audits sometimes require the cooperation of current employees, as, for example, if corrections must be made to the employee portion of the I-9, Section 1, or if the employer suspects that the documents of identity and employment eligibility that the employee previously presented may not be genuine.

Given that AB 450 prohibits reverifying a current employee’s eligibility to work in the United States, should California employers defensively adopt “head in the sand” policies to preclude or discourage voluntary immigration compliance audits? The answer will depend on the employer’s business circumstances and employment practices in the particular industry. It may also turn on whether an employer has become aware of facts or credible assertions that call into question the employment eligibility of one or more employees.

Under the constructive-knowledge rule, an employer will be deemed to know whatever could have been discovered if a reasonable investigation had been conducted. Thus, if an employer declines to investigate suspicious circumstances suggesting unauthorized employment, ICE can maintain that an employer has violated federal law because company officials should have known that the business had hired or continued to employ a worker while aware that the individual had no right to be employed in the United States. Consequently, as SHRM feared, AB 450 will “force human resource professionals to decide between abiding by federal law or state law.”

Unintended harm to workers, their unions, and business operations? While the constructive-knowledge rule, in effect, requires an employer to conduct a reasonable investigation, the rule does not dictate the speed of the investigation. In past ICE investigations, some field offices have expressly allowed an employer time to respond to an NSD by phasing-in the duration of time when workers whose employment eligibility has been questioned must reverify their employment eligibility. A compliance phase-in would give the employer time to reverify its challenged employees in tranches. Without internally posting a notice to employees that ICE has begun in I-9 investigation, an employer granted phase-in permission by ICE would (a) privately and without fanfare reverify the employment eligibility of its most recently hired or least skilled workers, (b) speedily hire replacements (who would quickly be trained by employees with longer tenure or greater expertise in the operations of the business), and (c) then reverify the most senior or essential workers.

In this way, employers could conduct a constructive-knowledge investigation sequentially over time, business operations could continue with less disruption, the most valued employees could continue in employment for the time being, and unions would continue to receive dues payments, while retaining the ability to negotiate severance packages for terminated employees.

What, then, is the likely outcome of AB 450’s requirement that the employer give public notice within 72 hours to all employees and the local union that ICE has served a NOI? Today, many employers have found that when employees learn of an ICE worksite investigation, they quickly disappear for fear of arrest and deportation. Leaving the employer in the lurch, an unknown number of undocumented workers merely purchase new identities and forms of work permission on the street – documentation that, with the increasing sophistication of counterfeiters, will appear to be genuine, and thus be used to get a new job with the next employer. And so the cycle continues. Rinse and repeat. Consequently, the 72-hour NOI notice requirement in AB 450 will likely only serve to disrupt businesses and prompt undocumented workers to switch jobs, while shrinking the duration and amount of dues payments to unions.

A bonanza for translators? AB 450 requires employers, within 72 hours of receiving an NOI, to post a notice at the worksite in the language the employer normally uses to communicate employment-related information to employees, announcing that ICE has served an NOI on the employer, and providing other required details. Although not clearly phrased, the posting obligation seems to include the duty to provide a translation of the NOI itself into the language(s) ordinarily used to communicate with employees.

California is a state that prides itself on its diversity, which necessarily entails a noncitizen population speaking a multiplicity of languages. Many workers in the state do not speak English well, but do speak a native language, be it Spanish, Chinese, Tagalog, Vietnamese, Armenian, Khmer, Farsi, or Russian, among others.

Heaven forbid – for example – that ICE serves an NOI on a Friday. This will likely leave many an employer scrambling first to draft the AB 450 notice, and then to find weekend translators capable of quick turnaround to produce the required translations. Perhaps competent translators can be found, but probably only at a premium price for speedy, afterhours delivery.

The drafters of the legislation apparently did not realize, however, that ICE officers are usually quite willing to extend its own 72-hour regulatory deadline by a week or two for an employer to turn over its I-9s and other required records, or even longer, if the employer can provide a reasonable explanation for its inability to satisfy the 72-hour rule.

California lawmakers made no provision for extension of the posting deadline in AB 450. It therefore doesn’t take a Hollywood scriptwriter to visualize how this might play out:

(Scene 1) Mid-day on a Friday afternoon, ICE serves the employer with the NOI,

(Scene 2) As the weekend is about to begin, the employer scrambles to find a lawyer begins who will help word the AB 450 notice,

(Scene 3) At the same time, the employer scrambles to locate translators to prepare translations into multiple relevant languages,

(Scene 4) On Monday afternoon, just hours before the 72-hour deadline in AB 450, the employer posts the translations on the employee bulletin board,

(Scene 5) Later that afternoon, the workers read the posting, interpret it as a “run notice,” and flee the building,

(Scene 6) Minutes later, ICE officers – aware of the California statutory deadline – are already poised in the parking lot to apprehend the fleeing workers and process them for deportation, and

(Scene 7) Tuesday morning, the factory is idle and quiet, except for the angry voices of union bosses complaining to management about unfair labor practices.

* * *

AB 450 is not the first California encroachment on federal immigration law, and not likely the last. As the courts, federal immigration agencies, and the NLRB are left to sort out federal from state legal rights and duties amid the detritus of this law, California politicians will likely be at it again, concocting new immigration laws, while figuratively quoting a former governor’s thespian line: “[We’ll] be back!”

Seyfarth Synopsis: Governor Jerry Brown has till October 15 to approve bills the Legislature sent to his desk by its Friday, September 15, deadline, including bills that would require employers to ”show us the money” for certain employees and to make “mum be the word” for an applicant’s past conviction history.

The 2017 California Legislative Session kicked off on January 4, 2017, with lawmakers introducing over 2,200 bills. Of the many employment-related bills introduced, only a small handful made the Legislative cut. But some, addressed below, could have significant impacts on employers. Will the Governor sign or veto these possible new California peculiarities? We’ll know by his October 15 signing deadline. (Wondering what bills did not make the cut? We’ll include those in our post-October 15 wrap-up.)

Gender Pay Gap Transparency Act. AB 1209—called by some the “public shaming of California employers” bill—would require employers with at least 500 California employees to, beginning July 1, 2019, collect information on differences in pay between male and female exempt employees, by job classification and title, and male and female Board members. The bill would require employers submit the information to the California Secretary of State by July 1, 2020, in a form consistent with Labor Code § 1197.5 (California’s fair pay statute), and, to provide an update to the Secretary every two years. The bill would require the Secretary to publish the information on a public website if the Legislature provides it with sufficient funding. For more detail, click through to our in-depth analysis on AB 1209.

Salary Inquiry Ban. AB 168 would prohibit employers from relying on an applicant’s salary history when deciding whether to offer employment and what salary to offer, and from seeking an applicant’s salary history. The bill expressly authorizes employers, in setting pay, to consider salary history that an applicant discloses voluntarily and without prompting, but affirms Labor Code § 1197.5’s prohibition against using salary history by itself to justify a disparity in pay. The bill would require an employer to provide a job applicant with the position’s pay scale upon reasonable request. The bill would apply to all employers but not to salary information available to the public pursuant to the California Public Records Act or the Freedom of Information Act. This bill comes on the heels of last year’s fair pay legislation AB 1676 and Governor Brown’s veto of AB 1017 (last year’s bill to prohibit salary history inquiries), which veto (he explained) was an effort to give SB 358 (the Fair Pay Act) a chance to work. The new bill also follows in the footsteps of similar legislation in San Francisco, New York City, Philadelphia (stayed pending legal challenge), Delaware, Puerto Rico, Oregon and Massachusetts.

Prior Conviction History of Applicants. AB 1008, dubbed the “Scarlet Letter Act,” by Assembly Member Kevin McCarty on the Assembly Floor, would repeal existing Labor Code § 432.9 and add a section to the Fair Employment and Housing Act (FEHA), which would prohibit an employer with five or more employees from (1) including on any employment application a question seeking disclosure of a job applicant’s conviction history, (2) inquiring into or considering an applicant’s conviction history until after extending a conditional offer of employment, and (3) while conducting a conviction history background check in connection with an employment application, considering, distributing, or disseminating information related to (a) certain arrests not followed by a conviction, (b) referral to or participation in a pretrial or post trial diversion program, and (c) convictions that have been sealed, dismissed, expunged, or statutorily eradicated.

As to an employer that intends to deny employment to a job applicant because of the applicant’s conviction history, this bill would also require the employer to:

  • Make an individualized assessment of whether the conviction history has a direct and adverse relationship with the specific duties of the job—considering the nature and gravity of the offense, the time passed since the offense and completion of the sentence, and the nature of the job held or sought.
  • Notify the applicant in writing of a preliminary decision to deny employment based on that individualized assessment, including disqualifying convictions forming the basis for rescission of the employment offer, a copy of the applicant’s conviction history report, and explanation of the applicant’s right to respond to the preliminary decision before it is final.
  • Allow the applicant specified periods of time to respond, then consider information submitted by the applicant before making a final decision, and then notify the applicant in writing of the final denial or disqualification, of any existing procedure the employer has for the applicant to challenge the decision, and of the right to file a complaint with the DFEH.

The bill’s provisions would not apply to positions with criminal justice agencies, state or local agencies required to conduct background checks, farm labor contractors, and employers required by state, federal, or local law to conduct background checks or restrict employment based on criminal history. The bill would also repeal (because this section would replace) a Labor Code provision prohibiting state or local agencies from asking an applicant for employment to disclose conviction history information.

Reproductive Health. AB 569 would add a provision to the Labor Code prohibiting an employer from taking adverse employment action against an employee or the employee’s dependents or family members for their reproductive health decisions, including the use of any drug, device, or medical service (e.g., birth control, abortions, or in vitro fertilization). An employer that violates this prohibition would be subject to penalties under Labor Code § 98.6, as well as reinstatement, reimbursement of lost wages and interest, and other appropriate compensation or equitable relief. This bill would prohibit employers from attempting to contract out of these requirements, by making null and void any express or implied agreement waiving these requirements. The bill would require employers to include a notice of these employee rights and remedies in its handbook.

This bill is the Legislature’s response to the 2012 U.S. Supreme Court case Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, to provide employees of religiously affiliated institutions the same benefits and protections as other California employees, unless the employee is the functional equivalent of minister, subject to a “ministerial exception” as developed in First Amendment case law. The Legislature agrees with Justice Alito, in his concurring opinion, that the ministerial exception should apply only to an “employee who leads a religious organization, conducts worship services or important religious ceremonies or rituals, or serves as a messenger or teacher of its faith.” Supporters of this bill cite cases of employees being fired for getting pregnant while unmarried. The bill’s author, Assembly Member Lorena Gonzalez Fletcher, stated on the Assembly floor that this bill “[is] an issue of basic health, privacy and worker rights.” The bill expressly states that it supplements, and does not limit, any right or remedy available under FEHA.

New Parent Leave Act and Parental Leave DFEH Mediation Pilot Program SB 63, the “New Parent Leave Act” would—through a new section added to the California Family Rights Act—extend CFRA’s protections to smaller employers (with at least 20 employees within 75 miles). The bill would prohibit those employers from refusing to allow employees with more than 12 months and at least 1,250 hours of service to take up to 12 weeks of parental leave to bond with a new child within one year of the child’s birth, adoption, or foster care placement. The bill would provide that an employer employing both parents who both are entitled to leave for the same child need not give more than 12 weeks of leave total to the employees (which may be granted simultaneously if the employer chooses). Further, an employer would be able to recover the costs of maintaining the health plan for employees who decide not to return to work after their leave exhausts because of a reason other than a serious health condition or other circumstances beyond the employee’s control.

SB 63 would also require the DFEH, when it receives funding from the Legislature, to create a parental leave mediation pilot program under which an employer may request all parties to participate in mediation within 60 days of receiving a right-to-sue notice. The bill would prohibit an employee from pursuing any civil action under these provisions (and toll the statute of limitations) until the mediation is complete. The mediation is considered complete when either party elects not to participate or withdraws from mediation, or notifies the DFEH that further mediation would be fruitless.

Retaliation: Expanding The Labor Commissioner’s Authority. SB 306 would authorize the DLSE to investigate an employer, with or without a complaint being filed, when retaliation or discrimination is suspected during a wage claim or other investigation being conducted by the Labor Commissioner. If the Labor Commissioner finds reasonable cause to believe a violation has occurred, the Labor Commissioner may seek injunctive relief. The bill would also allow an employee bringing a retaliation claim to seek injunctive relief upon showing that reasonable cause exists to believe the employee has been subject to adverse action for bringing the claim. The bill would provide that the injunctive relief would not prohibit an employer from disciplining or firing an employee for conduct that is unrelated to the retaliation claim. The bill would also authorize the Labor Commissioner to issue citations directing specific relief to persons determined to be responsible for violations and to create certain procedural requirements for such.

Immigration: Worksite Enforcement Actions. AB 450, known as the “Immigrant Worker Protection Act,” would prohibit employers from allowing immigration enforcement agents to have access to non-public areas of a workplace, absent a judicial warrant, and would prohibit immigration enforcement agents to access, review, or obtain employee records without a subpoena or court order, subject to a specified exception. This bill would also:

  • Require an employer to provide current employees with notices of an immigration agency’s inspection of I-9 Employment Eligibility Verification forms or other employment records within 72 hours of receiving the federal notice of inspection—using a template created by the Labor Commissioner.
  • Require an employer to provide affected employees (meaning employees who may lack work authorization or whose documents have deficiencies) a copy of the Notice of Inspection of I-9 Employment Eligibility Verification forms, upon reasonable request.
  • Require employers to provide to affected current employees, and to an employee’s authorized representative, a copy of the immigration agency notice that provides for the inspection results and written notice of the obligations of the employer and the affected employee arising from the action.
  • Grant exclusive authority to the Labor Commissioner or Attorney General to enforce the provisions of this bill and require that any penalty recovered be deposited in the Labor Enforcement and Compliance Fund.
  • Prescribe penalties for failure to satisfy the bill’s prohibitions and for failure to provide the required notices of $2,000 up to $5,000 for a first violation, and $5,000 up to $10,000 for each further violation.
  • Prohibit an employer from re-verifying the employment eligibility of a current employee at a time or in a manner not required by federal law, and authorize the Labor Commission to recover up to a $10,000 penalty for each violation.

Employee Request: Injury and Illness Prevention Program. AB 978 would require an employer to provide a copy—free of charge—to an employee, or to the employee’s representative, of the company’s injury prevention program within 10 days of a written request. A representative would include a recognized or certified collective bargaining agent, an attorney, a health and safety professional, a nonprofit organization advocate, or an immediate family member. The bill would allow the employer to take reasonable steps to verify the identity of the person making the written request. The bill would authorize an employer to assert impossibility of performance as an affirmative defense in any complaint alleging a violation of these new provisions.

Stay Tuned … check back for a full breakdown of this year’s legislative bills coming after the Governor’s October 15th deadline.