Update: In a lawsuit filed by the federal government in response to AB450 (a recent California law impacting the relationship between California employers and Federal immigration authorities), a U.S. District Court Judge in Sacramento granted a preliminary injunction preventing enforcement of certain provisions of the state law. Specifically, the July 4th order directed that private sector employers in California cannot be prosecuted by the state for either (1)allowing or consenting to a federal immigration enforcement agent’s request to enter nonpublic areas in the workplace; or (2) voluntarily allowing a visiting federal immigration enforcement agent access to employee records. Other sections of the California law remain in force.
Analysis: These two sections were the most burdensome for technology companies, many of which control access to their campuses, resulting in a near complete lack of “nonpublic areas.” With this preliminary injunction, employers are no longer held to AB450s requirements regarding the verification of warrants or subpoenas, pending further litigation. Specifically, under AB450, it was unclear if USCIS site visits conducted by FDNS were subject to the warrant and subpoena requirements. The preliminary order by the Court has eliminated, for the time being, the controversy surrounding FDNS site visits. California employers are now able to comply with FDNS site visits without fear of being fined by the State of California for violating AB450.
Impact: Although this is just a preliminary order, these two provisions are unlikely to come back into force any time soon. Federal litigation is a lengthy process, and the order was issued based on a finding that future litigation would likely result in two provisions being permanently enjoined as unenforceable. With these provisions on hold, employers should continue to follow their pre-AB450 practices regarding immigration site visits and related requests for records.