On July 4, 2018, Federal District Judge John A. Mendez granted a preliminarily injunction enjoining the State of California, Governor Brown, and Attorney General Becerra from enforcing parts of AB 450, the controversial new law that limited employer conduct when dealing with federal immigration enforcement. Specifically, the Judge stopped the enforcement of the California Government Code Sections 7285.1 and 7285.2 and California Labor Code Section 1019.2(a)&(b) as applied to private employers. The Judge upheld two other sanctuary state laws and part of AB 450. The Judge stated in his decision:
AB 103, SB 54, and the employee notice provision of AB 450 are permissible exercises of California’s sovereign power. With respect to the other three challenged provisions of AB 450, the Court finds that California has impermissibly infringed on the sovereignty of the United States.
Effective January 1, 2018, California’s public and private employers have been prohibited from voluntarily consenting to a federal immigration enforcement agent’s request to enter nonpublic areas in the workplace or to voluntarily allowing the agent access to employee records unless the agent provides a judicial warrant under AB 450. Today’s decision directly impacts these two key areas for employers.
The Judge put on hold or enjoined California from enforcing Government Code Sections 7285.1 and 7285.2 against private sector employers. This means private sector employers can not currently be prosecuted for:
(1) allowing or consenting to a federal immigration enforcement agent’s request to enter nonpublic areas in the workplace;
(2) for voluntarily allowing the federal immigration enforcement agent access to employee records.
The Judge also put on hold the new California prohibition against employers from re-verifying the employment eligibility of a current employee outside the time and manner required by federal law, under Section 1324a(b) of Title 8 of the United States Code.
However, the Judge upheld the notice requirements in AB 450 even though they place an administrative burden on California employers. California employers are still required to provide notice to employees as follows:
- Pre-Inspection Notice: Within 72 hours of receiving a federal immigration agency’s notice of inspection (“NOI”) of employment records, including I-9 Employment Eligibility Verification forms, an employer must provide notice to each of its current employees. The posted notice must include (1) the name of the immigration agency conducting the inspection; (2) the date the employer received notice of the inspection; (3) the nature of the inspection to the extent known; and (4) a copy of the NOI. California has now released a template Notice of Inspection Form, which meets the requirements under Labor Code 90.2(a)(1).
- Post-Inspection Notice: Within 72 hours of receiving written notice of an immigration agency’s inspection results, an employer must provide each affected employee (and his/her collective bargaining representative, if any) with written notice of the results. The notice must include (1) a description of any and all deficiencies or other inspection results related to the affected employee; (2) the time period for correcting any deficiencies identified by the immigration agency; (3) the time and date of any meeting with the employer to correct the deficiencies; and (4) notice that the employee has a right to be represented during any scheduled meeting with the employer. The notice must be tailored to the affected employee and hand-delivered the employee at the workplace. If this is not possible, the employer must endeavor to mail and e-mail the employee and the employee labor union, if applicable.
The federal District Court decision could be appealed by either party so employers should contact Jackson Lewis with any questions regarding the Court’s opinion or the application of AB450. Please feel free to contact Jonathan A. Siegel, Brian E. Schield or Richard B. Azada or the Jackson Lewis attorney you normally work with.