California, the would-be renegade state that has declared itself a statewide sanctuary for illegal aliens, has hired former Attorney General Eric Holder to "defend" it against expected actions from the incoming Trump administration (such as, presumably, withholding federal funds for its sanctuary status); and has a referendum petition circulating that would direct it to secede from the Union. Yet the state finally has found an immigration-related law that it can love.
That law is Section 274B, Unfair Immigration-related Employment Practices (8 U.S.C. § 1324b). This is the provision that establishes an offsetting balance to the requirement in Section 274A that employers verify documents to ensure a potential employee is authorized to work and isn't an illegal alien. Section 274B does so by ensuring that employers don't willy-nilly reject documents from applicants that are laid out in law and regulation as establishing proof of one's identity and status, thus providing a level playing field for all applicants without regard to ethnicity or national origin.
California has decided to show its love by enacting its own unfair immigration-related employment practices statute. (See item 4 here.)
Effective at the beginning of this year,
This law prohibits employers from doing any of the following:
- Request more or different documents than are required under Federal law.
- Refuse to honor documents tendered that on their face reasonably appear to be genuine.
- Refuse to honor documents or work authorization based upon the specific status or term of status that accompanies the authorization to work.
- Attempt to reinvestigate or reverify an incumbent employee’s authorization to work using an unfair immigration-related practice.
For any violations, workers may file a complaint with the Department of Labor Standards
Enforcement and can recover penalties up to $10,000.
The question here is one of federal preemption. Does California have the right to create such a statute when the federal government has already spoken on the issue with its own pervasive scheme of laws and regulations? When Arizona attempted to create mirror-image immigration enforcement laws, it faced a barrage of litigation from the Justice Department under Barack Obama. This one would likely pass the political litmus test under an Obama White House because it is an anti-discrimination statute, but the problem, of course, is that the Obama administration is on its way out the door.
California, I'm sure, would argue that its statute passes muster because it almost completely parrots the language of federal law, thus creating a parallel anti-discrimination regimen. I'm not so sure that takes the state statute outside the realm of preempted-and-therefore-forbidden.
But putting that aside for the moment, let me return to the fact that California's law almost, but doesn't completely, adopt the language of federal law. It is the fourth item — that employers are prohibited from reverifying an incumbent employee's work authorization — that opens up a can of worms.
Indeed, there are many reasons why an employer might legitimately reinvestigate the right of an employee to work despite having originally accepted the documents proferred:
- First, the employee may have provided employment authorization documents with a time limitation on the period in which he or she is entitled to work. When that time comes, it is imperative that the employer find out if an extension has been granted.
- Second, federal officers from the Departments of Homeland Security or Labor may notify the employer that something is amiss in some (or even all) of his I-9 attestation forms. Such a notification might also come from other organs of the federal government, for instance as the result of submitting tax and benefits withholdings only to find that a particular Social Security number is invalid or belongs to another person.
- Third, the employer may receive a credible tip or lead from someone — even, for instance, other employees — that the employee being reverified submitted bogus documents at the time of hire and verification. In such a circumstance, it would be reasonable for the employer to document the tip or lead, and proceed to attempt to reverify the right to work in an objective, non-discriminatory manner. After all, failing to do so might render the employer liable to penalties for having retained an unauthorized worker once he was put on constructive notice that the documents he initially accepted were fraudulent.
Yet California's law on its face would subject the employer to complaints and potential penalties simply for having undertaken the reverification even though nothing in federal law prohibits it.
How curious that the state finds value so selectively in deciding when to accept — or even act as a steward and surrogate for — federal immigration laws.