[Source: San Francisco Business Times] Efforts by Gov. Jerry Brown and state lawmakers to turn California into a “sanctuary state” may run headlong into a widespread immigration crackdown by federal officials, leaving some businesses and employers in the crossfire.
A report from the San Francisco Chronicle said that U.S. immigration officials are preparing for a “major sweep” in San Francisco and other Northern California cities, with the goal of arresting more than 1,500 undocumented people as part of a pushback against California’s sanctuary state efforts.
The threat of a rash of oncoming raids are supported by Immigration and Customs Enforcement acting director Thomas Homan’s public statements, for California to “hold on tight … If the politicians in California don’t want to protect their communities, then ICE will.”
New state laws went into effect this year that both limit the extent to which state and local law enforcement may aid federal agencies engaging in enforcement operations against suspected undocumented immigrants, and protect employees of businesses that are subject to immigration enforcement actions.
So what legal responsibilities do California business and employers have to protect their employees?
Prior to 2018, employers in the state faced with an an immigration enforcement agent seeking to enter a nonpublic area of a workplace had the choice to consent to the entry or deny it by demanding a warrant. The same choice applied to access to employee records.
However with the introduction of AB 450, authored by State Assemblyman David Chiu (D- San Francisco), employers are now required to demand a warrant before agreeing to allow immigration enforcement officials to enter nonpublic areas, and a subpoena or court order before allowing an immigration official to access employee records.
“The choice to comply with requests of immigration enforcement agents is now not available to employers in California,” said Sandy Rappaport, a partner at Hanson Bridgett that specializes in employment law. “Removing this choice doesn’t violate federal law, because under federal law employers have the right to demand a warrant or subpoena before allowing agents access.”
Rappaport said the big exception to AB 540 is when immigration authorities issue a Notice of Inspection of I-9 records, which employers are required to respond to and provide access to even without a subpoena.
Even in that case, employers who receive a Notice of Inspection must post a workplace notice to the employees and any collective bargaining agent, and must provide the results of any inspection to any “affected employee” and collective bargaining agent, within 72 hours after the results are issued.
Failing to comply with this new state standard could mean prosecution for employers and fines up to $10,000, according to state Attorney General Xavier Becerra.
“It’s important, given these rumors that are out there, to let people know – more specifically today, employers – that if they voluntarily start giving up information about their employees or access to their employees in ways that contradict our new California laws, they subject themselves to actions by my office,” Becerra said at a news conference. “We will prosecute those who violate the law.”
Source: Kevin Truong – Multimedia producer, San Francisco Business Times
January 22, 2018