The Chilling Effect of California's 'Immigrant Worker Protection Act' (But an Opportunity for ICE)

By Andrew R. Arthur on February 10, 2018

On October 5, 2017, California Governor Jerry Brown signed into law Assembly Bill (AB) 450, the "Immigrant Worker Protection Act". Despite claims to the contrary, it is a largely toothless bill, passed to chill employers' compliance with U.S. Immigration and Customs Enforcement (ICE). In the long run, however, it could actually assist ICE's efforts to ensure a legal workforce.

By way of background, ICE generally initially verifies employment eligibility under what is called the "Form I-9 Inspection Process", after the Form I-9, the "Employment Eligibility Verification Form". As the agency explains:

On November 6, 1986, the enactment of the Immigration Reform and Control Act required employers to verify the identity and employment eligibility of their employees and created criminal and civil sanctions for employment related violations. Section 274A (b) of the Immigration and Nationality Act (INA), codified in 8 U.S.C. § 1324a (b), requires employers to verify the identity and employment eligibility of all individuals hired in the United States after November 6, 1986. 8 C.F.R. § 274a.2 designates the Employment Eligibility Verification Form I-9 (Form I-9) as the means of documenting this verification. Employers are required by law to maintain for inspection original Forms I-9 for all current employees. In the case of former employees, retention of Forms I-9 are required for a period of at least three years from the date of hire or for one year after the employee is no longer employed, whichever is longer.

ICE begins that process by sending a Notice of Inspection (NOI) to the employer. By regulation, ICE must give an employer at least three business days to produce the Forms I-9. ICE will also often request that the employer provide additional documentation, including a list of current employees and a copies of payroll documents. Notably, section 274(e)(2)(B) of the INA states that immigration officers "shall have reasonable access to examine evidence of any person or entity being investigated" in investigating compliance with the employment-eligibility verification provisions, providing statutory authority for such requests.

ICE then reviews the documents that it receives from the employer for compliance with the INA and regulations. Following that review, ICE will send one of a series of notices to the employer:

Notice of Inspection Results – also known as a "compliance letter," used to notify a business that they were found to be in compliance.

Notice of Suspect Documents – advises the employer that based on a review of the Forms I-9 and documentation submitted by the employee, ICE has determined that an employee is unauthorized to work and advises the employer of the possible criminal and civil penalties for continuing to employ that individual. ICE provides the employer and employee an opportunity to present additional documentation to demonstrate work authorization if they believe the finding is in error.

Notice of Discrepancies – advises the employer that based on a review of the Forms I-9 and documentation submitted by the employee, ICE has been unable to determine their work eligibility. The employer should provide the employee with a copy of the notice, and give the employee an opportunity to present ICE with additional documentation to establish their employment eligibility.

Notice of Technical or Procedural Failures – identifies technical violations identified during the inspection and gives the employer ten business days to correct the forms. After ten business days, uncorrected technical and procedural failures will become substantive violations.

Warning Notice – issued in circumstances where substantive verification violations were identified, but circumstances do not warrant a monetary penalty and there is the expectation of future compliance by the employer.

In addition, ICE may send the employer a Notice of Intent to Fine (NIF). As its name suggests, this document informs the employer that the agency plans to seek civil money penalties "for substantive, uncorrected technical, knowingly hire and continuing to employ violations." The NIF is accompanied by charging documents delineating the employer's violations of the law.

Within 30 days of receiving the NIF, the employer can either negotiate a settlement with ICE, or ask for a hearing before an administrative law judge (ALJ) in the Office of the Chief Administrative Hearing Officer (OCAHO), a component of the Department of Justice's Executive Office for Immigration Review (EOIR).

AB 450 imposes certain constraints on employers in connection with this process. First, that bill adds a new section 7285.1 to the California Government Code, which states, in pertinent part:

Except as otherwise required by federal law, an employer, or a person acting on behalf of the employer, shall not provide voluntary consent to an immigration enforcement agent to enter any nonpublic areas of a place of labor. This section does not apply if the immigration enforcement agent provides a judicial warrant.

Violations of this provision carry a civil fine of $2,000 to $5,000 for a first offense, with fines of $5,000 to $10,000 for subsequent offenses.

Second, it adds a new subsection 7285.2(a) to the California Government Code, which states, again in pertinent part:

(1) Except as otherwise required by federal law, and except as provided in paragraph (2), an employer, or a person acting on behalf of the employer, shall not provide voluntary consent to an immigration enforcement agent to access, review, or obtain the employer's employee records without a subpoena or judicial warrant. This section does not prohibit an employer, or person acting on behalf of an employer, from challenging the validity of a subpoena or judicial warrant in a federal district court.

(2) This subdivision shall not apply to I-9 Employment Eligibility Verification forms and other documents for which a Notice of Inspection has been provided to the employer.

Again, a violation of this provision carries a civil fine of $2,000 to $5,000 for a first offense, and fines of $5,000 to $10,000 for subsequent offenses.

That law provides the state labor commissioner and the state attorney general authority to enforce these provisions, through civil action.

A headline in the Sacramento Bee appositely describes the effects of this law: "California employers caught between feds and state on immigration". That article describes a lack of awareness and confusion among employers in the state about the law, best exemplified by the following passage: "Los Angeles-based immigration lawyer Angelo Paparelli said the new California law 'creates a dilemma for employers' ... who are uncertain of the lines between federal and state authority."

Despite this fact, California State Attorney General Xavier Becerra has threatened that he will vigorously enforce the Immigrant Worker Protection Act:

The state's top cop issued a warning to California employers Thursday that businesses face legal repercussions, including fines up to $10,000, if they assist federal immigration authorities with a potential widespread immigration crackdown.

"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," state Attorney General Xavier Becerra said at a news conference. "We will prosecute those who violate the law."

Becerra's warning comes as fears spread of mass workplace raids following reports that immigration agents plan to target Northern California communities for deportations due in part to the state's "sanctuary" law, which seeks to restrict local law enforcement agencies' ability to cooperate with immigration authorities.

Employer sanctions law is an area in which I have significant experience. I began my career at DOJ as a law clerk in OCAHO. I also served in the former Immigration and Naturalization Service's San Francisco District office as one of two trial attorneys handling employer sanctions cases. That office had jurisdiction over approximately two-thirds of the Golden State, and I was responsible for tens, if not hundreds, of cases.

But even I am not sure of the full implications of this new state law.

For example, it is not clear that California has the authority to force employers to deny "voluntary consent to an immigration enforcement agent to enter any nonpublic areas of a place of labor." The Fourth Amendment to the Constitution, which appears to be implicated by the new California Government Code section 7285.1, states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

In Minnesota v. Carter, however, the Supreme Court held that "the Fourth Amendment is a personal right that must be invoked by an individual."

What I am sure of is that it will likely provide practitioners like Paparelli with a lot of business, as employers attempt to chart a course between Attorney General Becerra and Secretary of Homeland Security Kirstjen Nielsen.

That said, however, the primary purpose of these provisions appears to be to sow confusion among, and create a "chilling effect" on, employers who receive NOIs. Not to be redundant, but few if any employers are going to know what their obligations are as "required under federal law", although each of these provisions begins with that caveat. Attorney General Becerra's threats make compliance with ICE requests less likely.

George Washington University Law Professor Jonathan Turley, on the other hand, has described this law as a "golden opportunity" for Attorney General Jeff Sessions to limit California's sanctuary efforts. He explained:

There are legitimate issues over the federal government requiring state police to hold a person without a warrant. However, the Immigrant Workers Protection Act moves far beyond any prior incursion into federal immigration enforcement. Notably, California politicians like [former California Attorney General and now-U.S. Senator Kamala] Harris have objected to the federal government making demands on state officials to enforce immigration laws. But this law forces private citizens to hamper federal enforcement. It effectively tells employers to choose between the federal and state governments, including ordering them to take actions that would directly undermine federal enforcement.

Becerra and California have put private businesses and citizens in the path of federal enforcement. U.S. Attorney General Jeff Sessions is unlikely to be deterred by the involuntary conscription of private businesses as a barrier to enforcement. There is a long-standing adage that "hard cases make bad law." California may have just handed Sessions a golden opportunity to curtail the Golden State.

It is yet to be seen whether the attorney general will take that opportunity.

It should be noted, however, that other provisions in this law could be used by ICE to its advantage. For example, this act adds a new section 90.2 to the California Labor Code. Paragraph 90.2(a)(1) of the California Labor Code, as amended, states in pertinent part:

Except as otherwise required by federal law, an employer shall provide a notice to each current employee, by posting in the language the employer normally uses to communicate employment-related information to the employee, of any inspections of I-9 Employment Eligibility Verification forms or other employment records conducted by an immigration agency within 72 hours of receiving notice of the inspection.

Similarly, paragraph 90.2(b)(1) of the California Labor Code, as amended, reads as follows:

Except as otherwise required by federal law, an employer shall 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:

(A) A description of any and all deficiencies or other items identified in the written immigration inspection results notice related to the affected employee.

(B) The time period for correcting any potential deficiencies identified by the immigration agency.

(C) The time and date of any meeting with the employer to correct any identified deficiencies.

(D) Notice that the employee has the right to representation during any meeting scheduled with the employer.

While it could be argued that these provisions are intended to give the employee the opportunity to assist in correcting any "potential deficiencies identified" by ICE, their obvious purpose is to allow employees who are aliens illegally present in the United States the opportunity to abscond before apprehension and removal.

While this would deny ICE the opportunity to apprehend the alien in question (at least at the employer's workplace), it would also deny the employer the labor of the employee. The likely result of this (should this law ever come into full effect) would be to make employers more cautious in hiring: If an employer is dependent upon his or her workforce (as most are), and if that workforce is largely working illegally (as happens in certain industries), employers could be put out of business by compliance with this provision.

Simply put, if ICE sends an NOI on Monday for an inspection on Thursday, aliens illegally present will likely not show up to work that day, or any later day, either.

Significantly, new California Labor Code subsection 90.2(f) provides:

In accordance with state and federal law, nothing in this chapter shall be interpreted, construed, or applied to restrict or limit an employer's compliance with a memorandum of understanding governing the use of the federal E-Verify system.

U.S. Citizenship and Immigration Services (USCIS) describes E-Verify as:

[A]n Internet-based system that allows businesses to determine the eligibility of their employees to work in the United States. E-Verify is fast, free and easy to use – and it’s the best way employers can ensure a legal workforce.

It is also voluntary for most employers in the United States. The employers who hire large numbers of illegal aliens do so for many reasons, but the most common is that it provides a cheap and compliant workforce. ICE NOIs that trigger mandatory notifications to such a workforce make the cost of doing business more expensive for those employers. E-Verify, in this situation, provides a "safe harbor" against a mass departure of the employer's workers following the issuance of an NOI.

In a post last week my colleague Dan Cadman discussed a series of what he described as "77 proactive worksite operations focusing on employers in the state of California" that occurred recently over a period of three days. He explained that this was a series of NOIs "focused specifically on north-central California, including the San Francisco Bay Area", which followed "recent worksite operations against nearly 100 7-Eleven stores around the nation, including California, in which several illegal aliens were taken into custody."

He aptly noted:

ICE has chosen not to dispute the depiction of these enforcement actions as raids, even though they clearly were not, and probably for a very good reason. The agency is clearly sending a message to employers nationwide — but, more specifically to the State of California, which has declared itself a sanctuary and even gone so far as to enact its own state-level laws prohibiting employers from cooperating with ICE — that "business as usual", at least as conceived of during the prior eight years of the Obama administration, which engaged in virtually no worksite enforcement, is over.

Fear of apprehension is the strongest force multiplier in law enforcement. While the word "raid" may bring out immigration activists, it also deters illegal entry and forces those here illegally to fear arrest. The threat of such actions is likely more effective than the employer-sanctions system itself.

This is not to say that ICE was leveraging the Immigrant Worker Protection Act in issuing those 77 NOIs. If it was, however, kudos to the agency.

The more NOIs that ICE issues in California (and the more indignant and erroneous press that they get), the more that the sense of California as a "sanctuary" state will be shattered. It is ironic that the California state legislature and its attorney general could be inadvertently assisting in this effort, and on driving employers to E-Verify.