What Should Employers Know Amid Increased Immigration Enforcement Activity?
With the recent heightened immigration enforcement activity, employers need to be prepared in the event that ICE comes knocking on the door. Here is some key information to keep in mind.
What Are Employers’ Responsibilities for I-9 Work Eligibility Verification?
Eligibility verification (I-9): Employers are required to obtain documentation of right to work from all employees within three days of the employee’s first day of employment. This must be done using an I-9 form (unless the employer participates in E-Verify). The form was updated last September, so make sure you are using the correct one. I-9 forms should be maintained in a confidential manner, separately from employees’ personnel files. Employers must retain the forms for the later of three years after the date of hire, or one year after the date employment ends. Employers are not required to maintain the documentation that is used to verify work eligibility. If an employee’s work authorization expires, the employer will need to reverify employment eligibility before the expiration date. With ICE audits on the rise, it is wise to conduct a self-audit and correct any deficiencies as soon as possible. If your employees are unionized, you’ll need to involve the union in the self-audit process.
How Much Are Employers Allowed to Cooperate With ICE Agents Under California Law?
Employer cooperation with ICE agents: California has enacted legislation that limits the ability of employers to cooperate with immigration enforcement agents, and requires notices to employees of impending inspections. As you may have heard, the federal government filed suit to prevent enforcement of the new law. But until a court takes action to invalidate the law, it remains in effect.
What Must Employers Do When ICE Issues a Notice of Inspection?
ICE audit of records: If an employer receives a notice of inspection of I-9s or other employment records, the employer must post a notice for its employees within 72 hours of receipt, and must provide the notice to the employees’ union representative if applicable. The notice must state the name of the agency conducting the inspection, the date the notice of inspection was received, the nature of the inspection, and a copy of the notice of inspection. The California Labor Commissioner has created a form that can be used for such notices. After the inspection, the employer must provide notice of the results of the inspection to any affected employee, and the employee’s union representative. The notice must provide a description of the deficiencies that have been identified, the time period for correcting the deficiencies, the time and date of the meeting with the employer to correct the deficiencies, and notice that the employee has the right to representation during any meeting with the employer.
Can Immigration Agents Enter Nonpublic Work Areas Without a Warrant?
Searches by immigration officials: Under the new law, employers may not voluntarily consent to a search of any nonpublic places or work areas by an immigration enforcement agent without a valid judicial warrant. This means that enforcement agents who do not have a warrant should not be allowed into any spaces that are for employees only, such as break rooms, kitchens, or offices.
This prohibition against voluntary consent extends to records as well, requiring employers to not voluntarily provide immigration enforcement agents access to an employee’s records without a warrant or subpoena. However, a warrant or subpoena is not required for inspection of I-9 forms if a notice of inspection has been provided to the employer at least 3 days in advance of the inspection.
The penalties for violations of these new laws range from $2,000 to $10,000. Employers should ensure that managers or anyone who is in charge of the workplace at any time are knowledgeable about these requirements.
How Can Employers Support Employees During Increased Immigration Activity?
Be a resource for your employees: You can provide helpful information to your employees so that they may also prepare for the increased immigration enforcement activities. San Francisco has a Rapid Response Network that has a 24-hour hotline at 415-200-1548. In Alameda, there is the Alameda County Immigration Legal & Education Partnership, which can be reached at 510-241-4011. Finally, the San Francisco Immigrant Legal & Education Network has a wealth of resources on its website, including a Know Your Rights publication in many languages that you might consider making available to your employees.
Who Can Employers Contact for Questions About Their Legal Obligations?
As always, if you have any questions regarding employers’ legal obligations, you can call Fairgrieve Law at 415-890-6057.
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