Among the slate of new California labor laws enacted recently, the Immigrant Worker Protection Act, or AB 450, is particularly challenging for employers.
The new law, which was signed by Governor. Brown on October 5, 2017, will add three new sections to the Government Code and two new sections to the Labor Code. The legislation, AB 450, will go into effect on January 1, 2018 along with a number of other California labor laws.
Additional Burdens for All Public and Private Employers in California
Under the stipulations of current federal immigration law, if federal immigration authorities show up at a workplace to conduct a work site inspection, an employer may allow authorities to access any non-public portions of their work site by requiring a judicial warrant or by voluntarily consenting to access.
However, AB 450 removes the option of granting “voluntarily consent” to ICE officials, or other immigration personnel. Employers or those acting on behalf of employers will now be prohibited from providing voluntary consent for access and will have to insist on a judicial warrant instead.
According to an article at JDSupra.com,
"Many employers have expressed unease about being required to “stand up” to ICE in this manner, and have expressed concern about what ICE’s potential reaction and response will be. Employers will have to train staff on how to tactfully react to these situations, or face stiff penalties under the new law."
The Society for Human Resource Management (SHRM) opposed the bill, stating in a letter sent to the California State Senate that AB 450,
"will impose various onerous requirements on public and private employers with regard to a workplace compliance action undertaken by federal immigration agency personnel."
While some amendments were made or proposed, the bill as passed has garnered concerns among employers and HR experts. SHRM's letter to the state Senate stated,
"From the human resource professional's perspective, A.B. 450, while well-intentioned, will add a host of unnecessary burdensome requirements, create many logistical challenges, and could possibly force human resource professionals to decide between abiding by federal law or state law."
The new law mandates a number of new notification requirements of California employers. These include the following:
1. Employers or their representatives must obtain warrants and subpoenas from federal immigration agents before granting them access to nonpublic areas of the work site or permitting them to inspect certain employee records.
2. Employers must provide their current employees with a notice of any inspection of I-9 forms, or other employment records, within 72 hours of receiving a notice of a scheduled inspection. Written notice must also be provided to any collective bargaining representative within this 72-hour time frame.
3. Upon "reasonable request" the employer must provide any affected employees with a copy of a Notice of Inspection of I-9 forms.
4. Employers must provide all affected employees and their authorized representative with a copy of a notice that provides the inspection results within 72 hours of the employer receiving them from ICE. In addition, they must provide a written notice of the obligations of the employer and the affected employee as a result of the inspection.
5. Any employer who fails to provide these required notices within the prescribed time frames is subject to civil penalties from the Labor Commissioner of $2,000 to $5,000 for a first violation, and up to $10,000 for each subsequent violation.
6. Employers are prohibited from re-verifying the employment eligibility of a current employee at a "time or in a manner not required by federal law". The Labor Commissioner is also authorized to recover civil penalties of up to $10,000 for these violations, as well.
Employers Need to Prepare for HR Compliance
Employers in California should review and revise their policies and procedures in order to ensure compliance with the new law. In particular, supervisors and front-line staff should be trained on how to comply with the law’s new requirements regarding judicial warrants and subpoenas.
As with all new labor laws, it is highly recommended to have a documented policy in place on how to handle these situations if and when they occur. Regarding AB 450, employers should take particular note the employee notification provisions of the law to ensure any required notices are posted properly and within the applicable timelines.
Employers may want to obtain a copy of the template that the California Labor Commissioner is required to make available by July 1, 2018.
Ensuring Compliance With New California Labor Laws
Employers and HR managers are required to stay informed and up-to-date, not only of regulatory and legislative changes, but of the social and legal shifts that create new risks for a business.
In addition to a growing and demanding role in recruiting, hiring, and continually training employees, the HR staff will still be responsible for every other function they are typically tasked with such as payroll management, tax filings, employee records compliance, and so forth.
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