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      ICE block: New state law limits employer cooperation with immigration officials

      President Donald Trump’s U.S. Immigration and Customs Enforcement (ICE) is aggressively enforcing federal immigration laws. A new California law, the Immigrant Worker Protection Act, bars all public and private California employers from voluntarily assisting in that effort.

      The act prohibits an employer from: (1) voluntarily granting an immigration agent access to “nonpublic” areas of the workplace without a judicial warrant; (2) voluntarily giving an immigration agent access to employee records, other than I-9 forms, without a subpoena or court order: (3) reverifying a current employee’s eligibility to work in the United States unless required by federal law.

      The act requires an employer to: (1) post notice for current employees within 72 hours of receiving a Notice of Inspection of I-9 forms or other employment records from an immigration agency; (2) provide written notice of the results of an inspection of such records within 72 hours of receipt to any employee who inspectors found may lack work authorization and any employee whose work authorization documents the inspectors found deficient.

      With narrow exceptions, each violation of any of these provisions exposes an employer to a civil fine of thousands of dollars. Legislative analysts cited studies estimating there are over 2.6 million undocumented immigrants in California and that nearly one in 10 California workers is undocumented. San Diego is a border town. Attention must be paid.

      In February, the California Labor Commissioner and the California Attorney General issued joint guidance on frequently asked questions about the law and how state officials will enforce it. According to the guidance, a “nonpublic” area to which employers may not voluntarily grant immigration officials access “is one that the general public is not normally free to enter or access,” which may include “an office where payroll or personnel records are kept” or “an area that an employer designates (for instance, by posting signs or keeping doors closed) as restricted to employees or management of the business.” Examples of a business’s public areas include “the dining room of a restaurant or the sales floor of a store during business hours.”

      San Diego immigration attorney Vaani Chawla cautioned in an email that “[i]f the business layout involves a wide-open sales floor, the entire sales floor might be considered public. There are an infinite number of possible office and business floorplans, warehouses, and cubicle farms.” Immigration attorney Jeanne Malitz said in an email she believes “the entire space of a private office is private including the waiting area. . . . We advise employers to define this now and use signage to indicate where public access is prohibited.” The state does not consider an employer’s designation of an area as “nonpublic” conclusive; the state will base its determination on the particular facts of each case.

      In a Guide for California Employers, the Immigrant Legal Resource Center advises employers to designate and train an employee to handle encounters with immigration agents. Desk persons and security officers should be trained to direct immigration agents immediately to that designated person. The ILRC adds that if an immigration agent asks to enter a nonpublic area, the designated employee should “state explicitly that he/she does not consent to entry without a judicial warrant” and should scrutinize – and have the company’s lawyer scrutinize — any warrant if one is presented.

      An employee who receives a request from an immigration official to review I-9 records or other records, says Chawla, should ask the official for a Notice of Inspection or a subpoena. If the official does not have one, the representative should explicitly refuse the request. If the official presents the required notice or subpoena, the representative should insist on at least three business days to provide the documents.

      The ILRC warns employers not to “engage in any activities that could support a harboring or obstruction of justice charge such as hiding employees, aiding in their escape from the premises, providing false or misleading information, denying the presence of specific named employees, or shredding documents.”

      Trump’s Justice Department filed a lawsuit to invalidate this and two other new immigration-related California laws, contending the laws frustrate the federal government’s ability to exercise its exclusive authority over immigration under the U.S. Constitution and federal law. Malitz and other immigration attorneys “are keeping a close eye on the federal litigation” as should California employers. At all times, California employers and their staffs must comply with their obligations under this developing area of law.


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