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Assembly Bill 450, signed by Governor Brown in October of 2017, is effective this month. It imposes several new immigration-related responsibilities on California employers with respect to worksite enforcement actions and compliance with the requirement under federal law to complete and maintain the Employment Eligibility Verification form (aka “the Form I-9”) for employees.

What employers need to know about the new law:

  • It affects public and private employers;
  • Employers (or their agent) cannot provide voluntary consent to an immigration enforcement agent to enter any nonpublic areas of a place of labor unless they provide a judicial warrant;
  • Employers (or their agent) cannot provide voluntary consent to an immigration enforcement agent to access, review, or obtain an employer’s employee records without a subpoena or judicial warrant. However, there is a carve out in the law for the Form I-9 when Immigration and Customs Enforcement (ICE) agents present a Notice of Inspection (NOI).  Please note that an administrative agency such as ICE can issue subpoenas, meaning subpoenas are not always issued by a court;
  • Employers must provide notice (within 72 hours) to employees and if applicable their union representative, of any Form I-9 inspection by ICE as well as any other inspections of employment records conducted by an immigration agency;
  • Following up on above notice requirement to employees and their union representative, the new law has additional disclosure requirements which must be followed by an employer when requested by an affected employee.  Namely, an employer must, upon request, provide a copy of the NOI and any follow up documentation describing deficiencies identified as a result of the inspection by ICE (typically this would be the Notice of Suspect Documents or Notice of Discrepancies, both issued by ICE);
  • It limits re-verification of employees employment authorization unless specified by federal immigration law; and
  • Allows for civil penalties for non-compliance ranging from $2,000 – $10,000.

All of which is to say that employers in California should have a plan in place to address worksite enforcement actions by ICE agents so as to ensure that agents are not allowed access to nonpublic areas of a place of employment unless they provide a judicial warrant allowing such access.  This plan of action to address office visits by ICE isn’t limited to California employers. As a general rule employers should have a plan in place that when ICE agents arrive at a place of employment to deliver a NOI they are escorted to a private conference room or office and the NOI is handled by a manager or supervisor.  The NOI is the document that starts an administrative worksite enforcement action by ICE and by law, employers are provided with three business days to provide ICE with the Forms I-9 and other documentation listed in the NOI. Employers should train personnel to never waive the three business days requirement to provide ICE with the Forms I-9.  Also, train personnel to not allow ICE agents to interview employees short of a warrant. Finally, as a general rule employers should not handle worksite enforcement investigations without the assistance of legal counsel, especially in the current environment that will focus more heavily on penalizing employers for their failure to comply with the immigration requirements to hire and maintain a legal workforce.

Any questions about California’s new immigration law or ICE worksite enforcement actions please do not hesitate to contact me at montserrat.miller@agg.com.

If you are near the Cobb Energy Centre outside of Atlanta please join me for my firm’s annual employment law seminar.

Date: Thursday, October 8, 2015 from 8:00 am – 3:00 pm

Location: Cobb Energy Performing Arts Centre

Cost: FREE, plus complimentary breakfast and lunch will be provided

Our attorneys—who have been recognized by Chambers USA: America’s Leading Lawyers for Business and Super Lawyers—will provide the coaching you need to tackle today’s employment challenges.

Topics Include:

  • New Rules: The DOL’s Efforts to Expand the Coverage for Overtime Pay.
  • Labels Really do not Matter: The Dual Efforts of the DOL and NLRB to make Everyone an “Employee”.
  • The Expanding Definition of “Sex”: From Pregnancy to Same Sex to Transgender Rights in the Workplace.
  • Screen at Your Own Peril: How to Effectively Consider Criminal Records Given the EEOC’s Guidance and Enforcement Efforts and Expanding “Ban the Box” Legislation.
  • Living in a Global Workplace: Minimizing the Risk of Migrating Key Personnel Across Borders.
  • The Implementation of the Employer Mandate Under the Affordable Care Act: Regulatory Traps for the Unwary Employer.

Click here to register.

On this month’s webinar, part of Arnall Golden Gregory’s  Privacy Live Webinar Series, we will cover recent trends in class action litigation related to the Fair Credit Reporting Act (FCRA), Telephone Consumer Protection Act (TCPA) and data breaches. The panelists will discuss how class action lawsuits evolve and what drives them. In addition, they will discuss litigation avoidance strategies and potential defenses when these kinds of cases arise.
  • Overview of current privacy and consumer regulatory “hot topics”
  • Telephone Consumer Privacy Act (TCPA) – class action litigation trends
  • Fair Credit Reporting Act (FCRA) – class action litigation trends
  • Anatomy of a successful class action defense

Webinar date — July 30 at 11 am EDT.

Register Now for this one-hour, complimentary webinar with AGG attorneys Montserrat Miller, Kevin Coy, Henry Chalmers and Kelly Gordon Zemil.

This webinar is awaiting CLE credit approval by the State Bar of Georgia.

Join my colleagues Bob Belair and Kelly Gordon today at 11 am EST for a free webinar about protecting your company through insurance. Over 30 insurance carriers now offer cyber-security protection.  That protection customarily covers:

  • Data breaches;
  • Fair Credit Reporting Act (FCRA) violations;
  • Common law breach of privacy claims; and
  • Other data privacy and protection risks.

This webinar will address what should be covered by your cyber insurance policy: retention/deduction amounts, pitfalls and shortfalls in cyber insurance coverage.

This is part of a FREE webinar series held monthly by the Arnall Golden Gregory LLP Privacy and Consumer Regulatory Practice Group.   We hope you can join us.

The E-Verify system experienced a one-day glitch on October 22nd which led to certain employees erroneously receiving a Tentative Nonconfirmation.   Note that this only applies to cases created in E-Verify (or that you tried to create) on 10/22/13.  In the spirit of Halloween I highlighted key sections of the notice from the E-Verify Team regarding which documents led to the glitch.  The below notice posted on USCIS’ website also walks employers through resolution of such cases in the system.   Happy Halloween!

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October 24, 2013

E-Verify Customers,

On October 22, 2013 E-Verify experienced some technical issues. These issues have been resolved. As a result, employees who provided U.S. Passports or Passport Cards were erroneously receiving Tentative Nonconfirmations.

This instruction only applies to cases created on October 22, 2013 for employees that provided a U.S. Passport or Passport Card. This does not apply to other employees who provided other acceptable document(s) from the List of Acceptable Documents.

If you created a case for an employee who provided a U.S. Passport or Passport Card and received a Tentative Nonconfirmation, close the case as “Invalid because the data entered is incorrect”. You should then create a new case for the employee using the same U.S. Passport or Passport Card information provided for Form I-9.

Additionally, if you were unable to create a case, you should now create a new case for the employee using the same U.S. Passport or Passport Card information provided for Form I-9. If you created the new case on the same day as the technical issue (October 22, 2013), you must close that case as “Invalid because the data entered is incorrect” and create a new case.

If you are prompted to select or enter the reason why the case was not submitted within 3 business days of hire please select “Technical Problems” from the drop-down menu.

You must NOT ask the employee to provide a different document if the document(s) they provided, including the U.S. Passport or Passport Card, appear to be genuine and relate to the individual presenting it. You must NOT request that employees produce more documents than are required by Form I-9 to establish your employee’s identity and employment authorization. Requiring that your employee present new or different documentation could be considered document abuse and is prohibited under the Immigration and Nationality Act.

We apologize for any inconvenience this may have caused. If you have any additional questions, please feel free to contact E-Verify at 888-464-4218. Customer service representatives are available Monday – Friday 8 AM – 5PM local time. You may also e-mail E-Verify at E-Verify@dhs.gov.

Cordially,

The E-Verify Team

I will be participating on a panel tomorrow speaking about immigration compliance issues such as the Form I-9, what to expect if you are audited by ICE and immigration reform on Capitol Hill.   Hosted by the Employment Law Alliance you can register for the FREE webinar here or here.  Below is a description of the program and although it is geared toward the hospitality industry, many of the compliance issues I will be discussing are equally applicable to other industries.

Key Employment Issues for U.S. Employers in the Hospitality Industry

Potential new developments involving health care, wage and hour issues, and immigration compliance are on the horizon, and will impact many businesses, including those in the hospitality industry. This webinar will be presented by labor, employment, and immigration lawyers from across the U.S. who will provide insight and practical guidance on the following key issues as they pertain, in particular, to hospitality employers:

  • The Affordable Care Act:  preparing for the employer mandate and the new assessments for employers
  • Hot topics in wage and hour law:  pay practices and tip credits; unique exempt/non-exempt rules
  • Immigration compliance: best practices for Form I-9 compliance; immigration reform and what it means for the Hospitality industry

Speakers:

  • J. Bruce Cross, Moderator, Cross, Gunter, Witherspoon & Galchus, P.C., Little Rock, AR
  • Amber W. Bagley, Cross, Gunter, Witherspoon & Galchus, P.C., Little Rock, AR
  • Mark G. Burgreen, Bond Schoeneck & King, Syracuse, NY
  • Anna Elento-Sneed, Alston Hunt Floyd & Ing, Honolulu, HA
  • Montserrat Miller, Arnall Golden Gregory LLP, Washington, DC
  • Lenehn Ricks, Dudley Rich Davis LLP, Charlotte Amalie, St. Thomas, USVI

Over the past week or so you’ve likely heard a lot about the new Form I-9 all employers must begin using by May 7, 2013.   Which means that starting May 8, 2013 employers must use the new Form I-9 for new hires.  If you stockpiled prior versions, recycle those because starting on May 8, 2013 employers can only use the Form I-9 with the date “03/08/13 N” in the bottom left hand corner of the form.  The “N” means prior versions not allowed.   The Form I-9 is available in Spanish as well, but only as a resource/reference for Spanish-speaking employees and the Spanish version of the Form I-9 can only be completed in Puerto Rico.  Finally, the Handbook for Employers (M-274) has been updated as well to reflect changes to the Form I-9.  Employers should have on hand, as a resource for those completing the Form I-9, a copy of the revised Handbook.

You can read more about this and free Form I-9 training sessions provided by U.S. Citizenship and Immigration Services in E-Verify Connection.

Have a great day!

In the coming weeks you will notice an expansion of the content of this blog to focus on additional issues of concern to employers and those addressing workforce/personnel issues.  The blog will still provide updates on immigration compliance but will expand to include privacy-related issues. For instance, you may see a posting about background checks and the use of criminal history records for employment screening or about Ban the Box initiatives which seek to remove from the job application the question about arrests or convictions.  I hope you will benefit from the expansion of this blog and I would appreciate your feedback to montserrat.miller@agg.com.  In case you are wondering if Montserrat is a male or female name, click here.

Thank you for joining me for the launch of this blog.  As I pondered over what to say to kick things off I thought about the many things I could opine about when it comes to immigration — how dysfunctional the system has become, how the states are running amuck with their own immigration measures, how a one page form called the Form I-9 can be so complicated, and so on.  But these are really weighty issues which I’ll address in the coming months and for a welcome posting I thought I’d keep it short and sweet and leave you with this thought for all you cat and dog owners — as Puss said in Puss in Boots to the outlaw Jill as she was about to unceremoniously throw him over the cliff:  “Is it true a cat always lands on its feet?”  To which Puss responds, “No, that is just a rumor spread by dogs!”   Food for thought next time your cat falls off the kitchen countertop.