Form I-9

New FAQs and Notice Form to Comply with California Immigrant Worker Protection Act

New FAQs and Notice Form to Comply with California Immigrant Worker Protection Act

Recently, the Labor Commissioner’s Office published FAQs and a template notice form to help employers comply with the new California Immigrant Worker Protection Act (AB 450).  The new law went into effect on January 1, 2018, and is codified as California Labor Code section 90.2.

In essence, per the Labor Commissioner, the “law sets forth certain prohibitions on employer conduct if an immigration enforcement agent seeks to enter the employer’s place of business or requests employee records, subject to certain specified exceptions.  It also mandates that employers comply with specific notice requirements to employees if the employer receives notice from an immigration agency of an upcoming inspection of I-9 Employment Eligibility Verification Forms or other employment records.  Finally, it prohibits employers from reverifying employment eligibility of any current employee at a time or in a manner not required by federal immigration law.”

What Does the California Immigration Worker Protection Act Mean For Employers?

First, California employers must notify their employees within 72 hours of any immigration law compliance inspection or audit initiated by federal agencies, for example the U.S. Immigration and Customs Enforcement (ICE) agency.  Employers can provide notice by using the template form published by the Labor Commissioner and available here:  Labor Code Section 90.2 Notice to Employee.  The form is also available in Spanish here.  Employers must provide the completed Notice to employees within 72 hours of the agency’s request.  A copy of the agency’s inspection request, and any accompanying documents, must also be provided to employees with the Notice.

Second, California employers must “provide to each current affected employee, and to the employee’s authorized representative, if any, a copy of the written immigration agency notice that provides the results of the inspection of I-9 Employment Eligibility Verification forms or other employment records within 72 hours of its receipt of the notice. Within 72 hours of its receipt of this notice, the employer shall also provide to each affected employee, and to the affected employee’s authorized representative, if any, written notice of the obligations of the employer and the affected employee arising from the results of the inspection of I-9 Employment Eligibility Verification forms or other employment records. The notice shall relate to the affected employee only and shall be delivered by hand at the workplace if possible and, if hand delivery is not possible, by mail and email, if the email address of the employee is known, and to the employee’s authorized representative. The notice shall contain the following information:

  1. A description of any and all deficiencies or other items identified in the written immigration inspection results notice related to the affected employee.
  2. The time period for correcting any potential deficiencies identified by the immigration agency.
  3. The time and date of any meeting with the employer to correct any identified deficiencies.
  4. Notice that the employee has the right to representation during any meeting scheduled with the employer.”

Third, California employers are prohibited, with some exceptions, from “providing voluntary consent” to allow immigration agents to enter “nonpublic areas of a place of labor” without a judicial warrant.  Similarly, California employers are prohibited from “providing voluntary consent” to allow an agent to access, review, or obtain employee records without a subpoena or court order.  Note, however, that government immigration agencies (like ICE) may still request an employer’s I-9 verification records by serving a Notice of Inspection to the employer.

New Penalties For Violations of Labor Code 90.2

The Labor Commissioner and California’s Attorney General have the responsibility and power to enforce the provisions of the new Labor code.  Employers that violate provisions of Labor Code 90.2 can face civil penalties between $2,000 to $5,000 for a first violation and $5,000 to $10,000 for each subsequent violation.

For More Information:

The California Labor Commissioner and California Attorney General have published FAQs regarding this new law, which can be found here:  The Immigrant Worker Protection Act (Assembly Bill 450) Frequently Asked Questions.  Our office also partners with excellent attorneys who specialize in Immigration for Employers who can provide further information on these developing laws and issues.

For over 21 years, James has provided day-to-day counseling and advice to employers regarding compliance with employment laws, and reducing risks of employment-related claims and lawsuits. He also provides vigorous and strategic litigation defense when claims and lawsuits do arise.  In 2018, James is serving as the President of the Contra Costa County Bar Association, and has been on the Board for many years.

DISCLAIMER: Information provided on this website is not legal advice. It does not create an attorney-client relationship. Nor should you act on anything stated in this article without conferring with the Author or other legal counsel regarding your specific situation.

New I-9 Form Required For All Employers

New I-9 forms are required this year.

After over a year of editing, the US Citizenship and Immigration Services agency of the Department of Homeland Security has published a new Employment Eligibility Verification Form (Form I-9). The new form went into effect on March 8, 2013. Recognizing that employers may need a bit of time to transition use to the new form, the USCIS provided a sixty (60) day “safe harbor” for employers, and thus, gave employers until May 7, 2013 to start using the new Form I-9. Thus, now is the time your company should be taking steps to be in compliance by early May.

The new I-9 Form is now nine pages in total (seven pages of instructions/information, one page for the employee to complete, and one page for the employer to complete). Generally, the entire form is much easier to read than the old forms, and should help to reduce mistakes by the employee and employer. The seven pages of instructions are also more helpful and provide more clarity. In addition, the USCIS has updated the “Handbook for Employers, Guidance for Completing Form I-9″ (M-274).

Some General Reminders and Tips:

  • Employers are required to complete the Form I-9 each time they hire a new employee (with some exceptions).
  • A new employee should fill out the first page of the Form I-9 at the date of hire (which is no earlier than when the employee accepts the job offer), which should be no later than the first day the employee performs work.
  • Then, the employer should review the employee’s information on the Form I-9, and complete the employer sections (page 2 of the form) no later than three (3) business days from the date of hire.
  • The employer must physically examine the documents the employee presents for verification, and the person who examined the documents must be the person who signs the Form I-9.
  • Most employers choose to photocopy the employee’s documents. If your company does so, then the company must be sure to follow this same practice for every employee.
  • Employers must retain the completed Form I-9 and copies of documents for as long as the employee works for the employer, AND for a period after the employee separates from the company. These records can be retained in paper format, on microfilm, or electronically, but please review Part 3 of the Handbook for details.
  • Employers could face stiff penalties:
    • For failing to comply with Form I-9 requirements: not less than $110 and not more than $1,100 for each violation;
    • For knowingly hiring (continuing to employ) unauthorized workers: not less than $375 and all the way up to $16,000 for each unauthorized worker;
    • Potential civil lawsuits for discrimination and retaliation; and
    • Additional penalties and even criminal charges for other violations.
  • Train company representatives who will be processing Form I-9s for your company.
  • Review/audit your Form I-9 procedures and files to determine how your company is doing and whether it is compliant.