Data Protection Report - Norton Rose Fulbright

A new state law places California businesses on the front line in responding to federal immigration enforcement actions.  Effective January 1, 2018, AB 450 requires California employers to protect employees and their private information from warrantless “workplace raids” and I-9 form demands, and to warn employees who become targets of an immigration investigation.


Under federal law, immigration agents may arrive unannounced at a worksite for the purpose of investigating employees’ authorization to work in the U.S.  Agents may enter non-public areas of the workplace only with a judicial warrant or the employer’s consent.  Once inside, agents may demand proof of legal work status and may arrest individuals lacking the proper documentation.  Immigration and Customs Enforcement (ICE) also may conduct an audit of an employer’s I-9 employment eligibility forms.  Immigration enforcement is a high priority of the Trump administration, and ICE has responded by stepping up enforcement actions in workplaces.  ICE made a considerable show of force in January 2018 when it targeted the convenience store 7-Eleven, raiding nearly a hundred stores across 17 states in a single day and arresting 21 individuals.

AB 450, the Immigrant Worker Protection Act 

Late last year, California enacted AB 450, codified at Cal. Gov’t Code § 7285.1 – 1785.3 and Cal. Lab. Code §§ 90.2 and 1019.2, to protect undocumented workers facing immigration enforcement actions in the workplace.  Here are the key provisions:

No warrantless workplace raids. Under AB 450, a California employer may not consent to the warrantless entry by immigration agents into the non-public areas of a “place of labor.”  Instead, the employer (or a person acting on the employer’s behalf) must insist that the agent present a judicial warrant before permitting entry.  The law does allow the employer to escort the immigration agents to a non-public area where employees are not present, for the limited purpose of reviewing the agents’ warrant.

No access to employment records without a warrant, subpoena, or NOI. Employers in California may not consent to an immigration agency’s request to access, review, or obtain employment records, unless presented with a judicial warrant, a subpoena, or a Notice of Inspection (NOI) to review I-9 forms and related documentation.

Notice to all employees of impending immigration enforcement action. AB 450 imposes duties on employers to notify employees and their collective-bargaining representatives about impending immigration enforcement actions.

Notice to “affected employees” of results of immigration investigation. The employer must warn employees who may become the target of an immigration agency’s investigation.  Any employee who is deemed to lack legal work status or has a deficient I-9 form is defined in the new statute as an “affected employee.”  The employer must, within 72 hours of receipt, provide a copy of the notice to each “affected employee” (and their union representative, if any).

No re-verification of employment eligibility.  California employers may not re-verify a current employee’s employment eligibility at a time or in a manner not required by federal immigration law (specifically, 8 U.S.C. § 1324a(b)).

Enforcement and penalties.  AB 450 does not authorize a private right of action.  Instead, the law may be enforced by the California Attorney General or the California Labor Commission.  Fines for first violations range from $2000 to $5000, and $5000 to $10,000 for subsequent violations.  Re-verification of employment eligibility, in violation of the new California law, is subject to a fine of $10,000.

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