Erickson in the News: California Immigration Law Creates New Challenges for Employers

(Reproduced with permission from Daily Labor Report, 220 DLR 7 (November 16, 2017). Copyright 2017 by The Bureau of National Affairs, Inc. (800-372-1033) <http://www.bna.com>)

California Immigration Law Creates New Challenges for Employers A new California law aimed at curbing immigration enforcement could cause problems for employers.

California’s A.B. 450, signed into law Oct. 5, will become effective Jan. 1. The measure limits the circumstances under which employers can respond to requests for documents and physical access to nonpublic areas in connection with immigration enforcement. It also requires notice to employees and their labor union if the government will audit an employer’s I-9 employment eligibility verification forms. And employers are banned from rechecking a worker’s employment eligibility unless required to by federal law.

‘‘Where I see the biggest problem is in just the practical, real-world application of the new law’’ and ‘‘how employers will implement the new steps or rules that they now have to comply with,’’ Hiba Anver of the Erickson Immigration Group in Arlington, Va., told Bloomberg Law Nov. 14. ‘‘Any time you have large corporations’’ that have to undertake additional training, ‘‘it could have the potential to be burdensome,’’ she said.

‘‘Only time will tell’’ how the new law operates in practice, Jeffrey Kikuta of Fragomen, Del Rey, Bernsen & Loewy in Los Angeles told Bloomberg Law Nov. 13. ‘‘Right now, it’s difficult to say what the scope and level of impact will be,’’ he said.

‘‘Employers will have to become more savvy with what their rights will be under the new law’’ and will have to notify and train staff involved with immigration compliance, said Kikuta, who serves as managing attorney for the Individual Case Unit of Fragomen’s Los Angeles office.

Ramping Up Enforcement U.S. Immigration and Customs Enforcement is planning an increase in enforcement actions, making it likely that California employers soon will have to grapple with how to comply with both federal and state law.

ICE’s Homeland Security Investigations unit ‘‘will continue to enforce the laws established by IRCA which includes criminal and civil penalties for employers who knowingly employ unauthorized workers,’’ agency spokeswoman Danielle Bennett said in a Nov. 13 email to Bloomberg Law. The Immigration Reform and Control Act of 1986, or IRCA, was a comprehensive immigration law that, among other things, made knowing employment of undocumented immigrants a crime as part of its enforcement scheme.

‘‘ICE’s worksite enforcement strategy addresses both employers who knowingly hire unauthorized workers and the workers themselves,’’ Bennett said. ‘‘While we focus on the criminal prosecution of employers who knowingly hire illegal workers, under the current Administration’s enforcement priorities, workers encountered during these investigations who are unauthorized to remain in the United States are also subject to administrative arrest and removal from the country.’’

Acting ICE Director Thomas Homan ‘‘has directed ICE Homeland Security Investigations to step up its efforts in this area—to include pursuing more investigations and conducting more I-9 audits,’’ she said.

Who’s an Immigration Enforcement Agent? The California law restricts ‘‘immigration enforcement agents’’ from entering nonpublic areas of an employer’s property without a judicial warrant and from accessing personnel records without a subpoena or judicial warrant. That begs the question of who is considered an immigration enforcement agent, Angelo Paparelli of Seyfarth Shaw in Los Angeles told Bloomberg Law Nov. 6.

Immigration and Customs Enforcement agents are the obvious ones, said Paparelli, who founded and is a past president of the Alliance of Business Immigration Lawyers. But officers from several other federal agencies conduct enforcement actions that could fall under A.B. 450’s purview, he said.

That includes U.S. Citizenship and Immigration Services officers, who often conduct unannounced site visits, Paparelli said. And if the employer blocks a site visit, the USCIS could deny or revoke a petition for a foreign worker, he said.

How, Anver asked, ‘‘is the company supposed to make the distinction’’ between a situation where a subpoena or warrant is required and one where it isn’t? ‘‘Are they going to loop in in-house counsel or immigration counsel every time’’ a federal agent shows up? 

‘It naturally follows that companies are going to be concerned about the immigration-related consequences’’ of turning away federal agents and not necessarily consider all the relevant interests, said Anver, who is a lead attorney in her firm’s Immigrant Visa Practice Group. ‘‘There has never been this sort of conflict between federal and state law’’ when it comes to site visits, she said.

‘‘We’re still trying to examine’’ whether A.B. 450 applies only to ICE agents or to other federal immigration agents as well, Kikuta said. It’s also unclear whether an administrative subpoena issued by a federal agency counts as a subpoena under the California law, he said.

Notification of I-9 Audits Having to post notice of an impending I-9 audit also causes problems because it increases workplace tension and could cause workers to flee, Paparelli said. Depending on the employer, there could be ‘‘attrition in significant numbers,’’ he said.

‘‘Any time employees are notified that authorities are going to be on site conducting an inspection, there’s bound to be someone who’s going to feel anxious about that for one reason or another,’’ Anver said. At the very least, it’s going to raise questions from employees as to why federal agents will be coming to the building, she said.

Making sure the information is disseminated to employees through the proper channels and being able to field their questions ‘‘has the potential’’ to be problematic, at least for some employers, Anver said.

Paparelli said another troublesome section of the law bans employers from reverifying workers’ eligibility unless required by the Immigration and Nationality Act or a memorandum of understanding related to the E-Verify electronic employment verification system. The section effectively prevents employers from conducting internal audits of their I-9s, he said.

The federal government encourages internal audits and considers them to be evidence of good faith that can lower a fine if ICE does find violations, Paparelli said.

But Anver disagreed. A.B. 450 ‘‘doesn’t necessarily have to impact an internal I-9 audit either in the past or in the future,’’ she said.

The law prohibits employers from reverifying certain employees’ work eligibility in the face of an upcoming I-9 audit—for example, reverifying all foreign workers’ documents, she said. But anything else ‘‘should be business as usual,’’ Anver said.

Kikuta said employers should be focusing on getting their I-9 forms right the first time around. But whether conducting an internal audit is worth the risk of violating California law will have to be decided on a case-bycase basis, he said.

BY LAURA D. FRANCIS