In Trump’s bid to fulfill one of his major campaign promises, his administration empowered the federal immigrant system, such that the Congress is authorized to legislate for or against the entry and residency of people in the country. Moreover, the President is empowered to utilize the U.S. Immigration and Customs Enforcement (ICE) in order to oversee immigrant employees in the workplace as well. Employers thus have the obligation of protecting their employees in the event of a workplace raid by the ICE through California’s “Immigrant Worker Protection Act.”

What Does This Act Do?

Generally, California’s “Immigrant Worker Protection Act” protects employees from the federal Immigration and Customs Enforcement (ICE). The law imposes three major requirements:

1. Workplace Entry Consent

Employers may not permit immigration agents to enter into the non-public areas of the workplace. They will be allowed only if they provide a judicial warrant. The employer could allow an immigration agent into the non-public area in order to determine whether the agent has the warrant if none of the employees are present. However, the employer will not permit the agent to undertake a search on the area.

Any employer that violates this part will have to a pay a fine of $2 000 to $5 000 for the initial offense and $5 000 to $10 000 for the subsequent offenses unless the court found that the agent entered the non-public area without the consent of the employer.

2. Employee’s Records Reviewing

The employer may not permit the immigration officer to have access to the employee records unless the officer provides a judicial warrant or a subpoena. However, this provision does not apply to Form I-9, the document provided by the employee to the employer as a proof of identity and authorization of working in the US. Similar penalty as above is attached.

3. Form I-9 Inspection

Provided the employer received a notice of inspection from the federal government, the employer must inform the employee of the notice with a copy of the notice within 72 hours using the usual workplace communication medium. After all, the California Labor Commissioner has a template developed for this purpose.

After the employer has received the results of the inspection, the employer is given 72 hours to forward the results to the Commissioner. The same penalty is also attached.

Conclusion

Since this is a new law, many employers may get stocked in the middle of the controversy between the state and federal government laws. Therefore, it is imperative that employers seek legal advice from an experienced lawyer in California so as to know how to exploit the immigration protection law to stay ahead of the game when the ICE agents step up their crackdown.

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California immigration law has come into focus recently following a controversial decision by lawmakers to introduce what is now referred to as a “sanctuary state” or state protection for undocumented immigrants. The law is meant to shield immigrants from a process that could inevitably lead to deportation and it may cause complications between state and federal law agencies when handling cases of immigration.

A Closer Look at California’s Immigration Law

Law enforcement agencies in California have certain limitations when handling immigrants. The law currently prohibits the following:

a. Issuing a hold request to detain an individual without a warrant or felony;
b. Holding an undocumented immigrant in a federal prison – this is only allowed in cases where the same individual has been convicted of a crime that falls under the California Crimes Act.
c. Requesting information about an individual’s legal status or sharing this information with other authorities – this is only allowed when running a multi-agency operation.

Bear in mind that a parallel federal program exists to gather information (including fingerprints) on any person arrested and this information is used in a subsequent database search that also checks the person’s immigration status.

What New Changes Does the New “Sanctuary State” Law Bring?

The new law introduces additional processes for state and federal authorities when handling immigration cases. On one hand, it creates a barrier and slows down inter-agency cooperation; but it also establishes a guideline for cases that require multi-agency cooperation.

It’s important to note that not all immigrants are protected by this new law. Individuals who’ve been convicted of certain crimes will not be safe from possible deportation if their cases are on the spot. People who have been convicted of offenses such as violent crimes have little chance to fight deportation if such a process were initiated against them.

What Does This Mean for Immigrants Living in California?

In the meantime, federal agents can still conduct raids and arrest suspected immigrants, and federal agencies are still free to communicate with state agencies about individuals who are of interest or arrestees who are serving prison sentences while awaiting deportation. Legal immigrants have been given what is considered the most widespread state protections in the country.

Generally speaking, immigration law is covered by the federal jurisdiction; however, state laws do offer protections for immigrants living in California. This is why the state is considered a sanctuary for immigrants, even though this goes against federal policies. The Trump administration has already filed a lawsuit against the state challenging this new legislation as it contradicts the federal government’s plan to tighten up on existing immigration laws.

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The lawmakers of the California state have recently passed three new laws of immigration in December 2017 which will be effective from January 1, 2018. These new immigration laws include:

Law 1: California has a status of Sanctuary State

According to this new law any law enforcement agency, local as well as state-run, cannot use means to detain any immigrant on the basis of the immigration laws of Federal government. In other words, these agencies can neither take someone on hold nor can question the immigration status of any immigrant on the request of Immigration and Customs Enforcement department of USA.

Law 2: Landlords are not allowed to report to ICE regarding their tenants

This law has been passed separately with an intention to restrain the landlords from reporting about the immigration status of their tenants to ICE. Moreover, the landlords are also not allowed to pressurize their tenants for eviction on the basis of their citizenship status.

Law 3: The inspections during workplace immigration will also be restricted.

This law restrains the employers from accepting unwarranted workplace inspections by ICE. In addition to it the employer has to inform the employee about the federal inspection notice within 72 hours of receiving it.

Expected implications of these new immigration laws in California

These laws were among several other bills passed by California government to prevent the effect of the policies of the administration of President Donald Trump.

By making California a Sanctuary state through these laws, police will not be able to ask about the status of immigration of an individual or be part of any immigration enforcement activity under the federal law. The jail officials are also guided by this law about the transfer of jail inmates to the authorities of federal immigration department only if they have been found guilty of the crimes of a particular type.

Moreover, the officials of immigration department must have a warrant before accessing the records of the employees and the workplace. Along with it, landlords are also banned to disclose the citizenship of their tenants. Even the officials of universities will be prohibited under one more new law for helping the officers of the ICE department.

The law enforcement officials will also be barred under another bill from keeping a witness or victim of a crime on hold or handing them over to authorities of immigration department without any warrant only because an immigration violation is suspected or actually done.

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The California legislature has passed a number of the employment bills that Governor Brown has signed into law. Most of these new laws are related to the wages, hiring practices, immigration, and some other workplace protection. Each and every employee should be aware of the new workplace laws to ensure that are not violating those laws that will be subjected to a huge penalty.

These laws are effective from 1^st January 2018. The new law might not be that helpful for the employees as they have to comply with the federal immigration law obligations while obeying the state laws. Any violation will make them spend huge penalties. In this article, we will focus on the five aspects of the new law.

Can employers give voluntary content to immigration enforcement agents to enter non-public areas?

No, the employer will not have that jurisdiction. The new laws will restrict the employers to give consent to immigration enforcement officers to enter the non-public areas of any workplace unless it is required by the federal law. Besides, the employers cannot give them consent to access or review the records of the employee without a judicial warrant. But this prohibition will not be applied to the to I-9 Employment Verification form.

What will be the judicial right of the affected employees?

The employers must send notice to the affected employees about the inspections of the Employment Eligibility Forms for Verification and any other required documents conducted by an immigration agency. The notice needs to be sent within 72 hours. The notice will be written in the same language that the employer uses to communicate with that employee.

Does the employer need to re-verify the eligibility of the current employee?

The employers will not be allowed to re-verify the employment eligibility of the current employees at a time. It is not demanded by the federal law. The employers only need to handover the notice about the verification within 72 hours.

Is there any penalty?

Yes, there will be a huge penalty for the violation of these laws. Therefore, all the employees and employers should ensure they are in compliance with the new federal law.

What will be the amount of the penalty?

The penalty will vary from the $2, 000 to $5,000 for the first violation. It will be $5000 up to $10, 000 for the subsequent violations.

All these new laws might not be favorable to the employees. In case, they fail to obey these laws that will cost them a huge amount and they will have to pay more in the penalty for every subsequent violation. A better understanding of the laws will help to avoid those penalties and to be on a safe side.

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After Gov. Jerry Brown assented several bills presented to him as new laws, California employers have a responsibility of having them at their fingertips lest they violate the new laws of the land. Among the several bills which are now, the law is the Immigration Bill. The bill passed by California legislators was a response to actions related to immigration by Trump’s administration. The new measures enacted relate to immigration enforcement at workplaces.

AB 450

AB 450 bars employers from granting permission to immigration law enforcers that do not have a warrant for accessing non-public places within workplaces except if they are in line with federal laws regulations. The only people that have the power to enforce this provision are California Attorney General and the Labor Commissioner.

Moreover, the new law forbids employers or any other persons acting on their behalf from willingly consenting or allowing an immigration officer to review, access or obtain any employee’s records without a judicial warrant or subpoena except if authorized by the rules and regulations of the federal law.

However, it is important to note that this does not apply to forms which have a notice for inspection or 1-9 records that deal with employment verifications. Upon receiving a notice of inspection, employers must within three days (72 hours) provide every current employee with the inspection notice.

What is a “Current Affected Employee”

Every “current affected employee,” (employees identified by the immigration agency as those that lack work authorization or those identified by the immigration office because of deficiencies in their work authorization documents.)

The notice which must relate to the affected employee should be hand-delivered by the employer at the workplace, by email or by mail if hand delivery proves to be practically impossible. Delivery should be done within 72 hours (3 days) upon receiving an immigration agency notice by the employer that provides inspection records results or 1-9 results.

Violations

In addition to that, the employment eligibility of current employees may not be re-verified by employers in a manner not stipulated by the federal law. First violations of these new provisions have civil penalties and fines that range from $2000 to $5000.

Subsequent violations will attract civil penalties and fines that range from $5000 to $10000. However, note that the new law will not restrict or prohibit an employer from complying with a memorandum of understanding which regards using E-Verify.

It is the responsibility of employers to let their employees familiarize themselves with the procedure to follow whenever they are faced with an inspection. The employer also has to make the employees know about the new prohibitions about granting willful access to immigration officials.

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