At some point, it is quite likely that you are going to receive some uninvited guests at your workplace – from Immigration and Customs Enforcement (ICE). The stakes will be high, and the consequences of mishandling this visit could be unpleasant. If this happens, you will be walking a tightrope, so to speak, because federal policy and state law, although not directly contradictory, are at odds with each other on the matter of workplace immigration enforcement.
Federal Immigration Law vs. California’s Immigrant Worker Protection Act
California’s Immigrant Worker Protection Act (AB 450) imposes obligations on employers that are designed to protect California employees from certain immigration enforcement activities. It is unquestionably antagonistic to current federal immigration enforcement policy. Under AB 450:
Even though federal law allows ICE to access your nonpublic work areas and inspect your business records as long as you consent to it, California law does not permit you to grant this consent. You are not breaking federal law by refusing to consent – simply inform ICE agents that state law prohibits you from consenting to their request.
The only exception to this rule is that state law permits you to comply (and federal law requires you to comply) if ICE presents you with a judicial warrant or subpoena issued by a court. ICE documents alone are not sufficient to immunize you from liability for allowing ICE officials to enter nonpublic work areas or access business records.
If an ICE agent shows you an ICE Notice of Inspection, don’t be intimidated by it. This notice allows ICE to access Forms I-9, payroll records, a list of current employees, articles of incorporation, and business licenses three days after you are presented with the notice. It does not allow ICE agents to enter nonpublic work areas or access records immediately.
Within 72 hours after you receive an ICE Notice of Inspection, AB 450 requires you to post a notice to all of your current employees, notifying them of ICE’s inspection of the foregoing documents.
Within 72 hours after the inspection concludes, you must provide every employee, upon whom suspicion has been cast, a copy of the results of the inspection along with a written notice of your obligations as well as the affected employee’s obligations as a consequence of the inspection.
Make Sure Your Employees Know the Rules
Your company could get into legal trouble with the state government if any of your employees fails to comply with AB 450 by, for example, voluntarily granting ICE access to your nonpublic work areas. You need to train your employees on how to comply with both state and federal law and how to recognize when an ICE agent does and does not present the proper documentation to allow an inspection.
Since the penalties for noncompliance with either state or federal law can be significant ($10,000 per violation of AB 450 and $110 to $20,000 for violation of federal I-9 regulations), it is best to prepare in advance so that no violation occurs in the first place.
Consult with the Professionals
If you are concerned about how to respond to a visit from ICE, and if you would like to prepare in advance with full knowledge of your rights under federal and state law, call CKB Vienna at 909-980-1040, or contact us online to schedule a consultation with us so that we can answer your questions. We serve clients in Rancho Cucamonga, San Bernardino County, Los Angeles County, Orange County, and Riverside County.