Immigration Bill Could Create Employer Liability

The Assembly fiscal committee today will consider a California Chamber of Commerce-opposed bill that puts employers in a no-win situation between federal immigration enforcement and state enforcement.

AB 450 (Chiu; D-San Francisco) punishes employers—rather than providing tools and resources for employees—when federal immigration enforcement officials appear at the workplace regardless of whether the employer has violated the law.

The bill prohibits an employer from providing a federal immigration enforcement agent access to the business without a properly executed warrant and also prohibits the employer from providing the agent voluntary access to the employer’s employee records without a subpoena.

Fiscal Concerns

CalChamber and the large coalition opposing AB 450 are concerned that the cost of implementing the provisions of this bill will be significant.

The Division of Labor Standards Enforcement and other states agencies will be subject to a number of costs:

  • Legal analysis and determining the applicability of federal provisions that would supersede, conflict or make invalid provisions of the bill.
  • Establishing and maintaining response teams to dispatch to worksites when notified that an immigration enforcement action is taking place. Implementing this requirement would result in significant personnel costs for the Division of Labor Standards Enforcement to maintain staff on a “stand-by” basis to respond when the agency receives any of the notices required by the bill.
  • Record keeping and review of reports made to the Labor Commissioner regarding worksite enforcement actions, employee notifications and employer self-audits of I-9 forms.
  • Enforcement actions taken by the Labor Commissioner against public and private employers for noncompliance with the provisions of the bill, potentially requiring additional staff for purposes of enforcement.
  • Staff time to respond to calls from employers when enforcement actions are underway by federal authorities, and response when employers self-audit their document files.
  • Attorney General defense of state agencies cited.
  • Penalties paid by state agencies found in violation of the requirements.
  • Drafting and adopting new regulations to implement the provisions of this bill.

The coalition recognizes and values the important role immigrants play in California’s economy and in the workforce and, therefore, strongly supports comprehensive federal immigration reform that includes temporary foreign worker programs, border security and a path to legal status. The author and these organizations share the objective of protecting our employees upon whom we depend.

AB 450 has several provisions that could adversely affect an employer when an immigration enforcement action occurs at its place of employment.  Significantly, it penalizes an employer for choosing to cooperate with federal immigration enforcement authorities, thereby denying the employer the right to determine the best course of action for its business under these difficult circumstances.

Believing its employment eligibility verification and recordkeeping practices are in full compliance with federal law, an employer may determine that cooperation with federal enforcement officials is its best course of action. Unfortunately, AB 450 forbids an employer from cooperating with federal authorities and instead requires the employer to demand “a properly executed judicial warrant.” Unknowing employees could inadvertently violate the provisions and put the employer at risk of significant penalties without the employer having violated any laws that harm employees.

An employer that cooperates with the enforcement authorities, and provides consent for them to enter the workplace, instead of demanding a warrant would be subject to significant penalties under AB 450 (no less than $10,000 and up to $25,000 for each violation), as well as an inspection by the Labor Commissioner.

No Meaningful Protection

While the intent of the bill is to protect the rights of workers, AB 450 offers no meaningful protection from deportation or helpful information to employees. Instead, the bill places employers who are not violating worker rights in serious legal jeopardy.

The bill does not differentiate between good and bad employers; instead, it assumes the employer has committed violations by requiring the employer to report to the Labor Commissioner any federal immigration enforcement action at its workplace so that the Division of Labor Standards Enforcement may investigate the employer for wage-and-hour violations.

There is not and should not be a nexus between immigration enforcement, and an inspection by the Labor Commissioner where no just cause is present.

Employers who follow federal law by properly verifying documentation of newly hired employees’ eligibility to work (by properly completing and executing a Form I-9) should not be punished by state law for employing them.

Employment Eligibility Verification

Every U.S. employer must ensure proper completion of Form I-9 for each individual it hires for employment in the United States within three days of the individual starting work. This requirement includes citizens and noncitizens. Both employees and employers (or authorized representatives of the employer) must complete certain parts of the form. On the form, an employee must attest to his or her employment authorization.

The employee also must present his or her employer with acceptable documentation evidencing identity and employment authorization. The employer must examine the employment eligibility and identity document(s) an employee presents to determine whether the document(s) reasonably appear(s) to be genuine and to relate to the employee and record the document information on Form I-9. If the document(s) reasonably appear(s) to be genuine and to relate to the employee, then the employer must accept the document(s). Employers must retain Form I-9 for a designated period and make it available for inspection by authorized government officers.

The provisions of AB 450 are overly punitive to the employer and assume noncompliance. An employer would be prohibited from exercising its discretion in how to best handle an enforcement action by federal immigration officials. Instead of this overly punitive approach that leaves the employer nowhere to turn, an approach of outreach to and education of employers and employees would be more helpful.

Action Needed

AB 450 will be considered by the Assembly Appropriations Committee today.

The CalChamber is asking members to contact their Assembly representative and members of the Assembly Appropriations Committee to urge them to oppose AB 450.

An easy-to-edit sample letter is available at www.calchambervotes.com.

Staff Contact: Marti Fisher

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