Labor Code

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.

2015: New Employment Laws In California

2015: New Employment Laws In California

For 2015, California employers must be aware of a few important (and somewhat complicated) new – or changed – employment laws. I am happy to post a PDF version of 10 of those new employment laws in California. Some of these new laws should be reflected in Employee Handbooks, involve providing notices to employees, and require new training for managers and supervisors.

10 New Employment Laws for 2015

As always, please do not hesitate to contact me to discuss these laws, to update your company’s Employee Handbook and other essential documents and agreements, or for assistance regarding any other employment/HR issue.

More Class Action Lawsuits: Employee Cell Phone Expense

More Class Action Lawsuits: Employee Cell Phone Expense

Many business owners believe that California is a very difficult place to conduct business and to have employees. That belief may soon gain more advocates as a result of a recent California court decision that employers must consider. The Court determined that employers must reimburse employee cell phone expense when employees use their personal phones/mobile devices for work related purposes. The Court focused on California Labor Code Section 2802, among others. The Court reasoned that employers should not benefit from a “windfall” by relying on employees to pay for their own cell phone plans while using such devices for the benefit of employers. This is true, the Court decided, even if the employee does not suffer any additional out of pocket expenses for having their own cell phone plan (for example, employees who have an unlimited plan, or who do not get charged per call, really do not suffer any detriment by using periodically their own devices for work).

You can read more about Cochran v. Schwans Home Services, Inc. and some practical pointers in my October 2014 post titled “Cell Phone Expenses: Next Wave of Employee Class Action Lawsuit?” at Maximize Social Business.

Sex, Social Media and Other Workplace Issues

Sex, Social Media and Other Workplace Issues

In honor of Valentine’s Day, my latest post for Maximize Social Business focuses on workplace romances. Relationships among co-workers sometimes shift from platonic to romantic. In fact, according to an online survey, a majority of respondents admitted to having some type of workplace romance.

While many of these relationships end in turmoil and wreck havoc in the workplace, employers and employees can take steps to avoid a messy situation. In my post titled Social Media and Workplace Romances I explore some of the obvious and not-so-obvious pitfalls involving romance in the workplace and a few policies and proactive steps employers can take to minimize the harmful impact of relationships gone wrong.

Office Closures Lead To Employment Issues

Office Closures Lead To Employment Issues

The severe winter storms can bring employment issues when employees work from home.

Unexpected office closures due to weather, earthquakes, and other unanticipated events often lead to a variety of employment law/HR issues for employers and employees. Businesses should plan ahead for those unexpected closures so that they are prepared to handle safety, communication, productivity and many other issues.

In my January 2014 post for Maximize Social Business, I examine two social media/technology issues and also the important (and sometimes confusing) issues of wage payment during office closures. The post is titled “Workplace Woes During Weather Worries” but is certainly applicable to closures due to other events besides the recent Polar Vortex.

Image credit – Benjamin Krain/The Arkansas Democrat-Gazette/AP