On July 5, 2018, a federal judge in the Eastern District of California granted the U.S. Department of Justice’s (“DOJ”) request to temporarily prevent the state of California from enforcing key provisions of AB 450, one of three “sanctuary” laws that Governor Jerry Brown signed into law on October 5, 2017, and which took effect on January 1, 2018. AB 450, known as the Immigration Worker Protection Act, provides that California employers:
- May not allow federal immigration officials to access the employer’s nonpublic work areas unless the officials have a judicial warrant;
- May not allow federal immigration officials to access employee records without a subpoena or judicial warrant;
- Must provide notice to its employees before and after the federal government inspects the employer’s I-9 forms; and
- May not re-verify an employee’s lawful work authorization status unless required to do so by federal law.
In March 2018, The U.S. DOJ sued the state of California, arguing that AB 450 impedes the federal government’s ability to enforce immigration law. California has argued that it cannot be forced to assist the federal government with immigration law enforcement. The lawsuit asked the Court for a preliminary injunction while the lawsuit goes forward. At the preliminary injunction hearing on June 20, 2018, Eastern District Judge John Mendez asked the lawyers to set aside their formal arguments, and instead engaged them in a six-hour question-and-answer session.
In its July 5 order, the Court agreed to halt enforcement of one provision of AB 450, and refused to halt enforcement of other parts of the law. Employers may now allow federal immigration officials to inspect non-public work areas without a judicial warrant. But employers must still provide the mandated notices regarding inspection of employee records because, the Court reasoned, doing so did not impede the federal government’s ability to enforce immigration law.
The U.S. DOJ’s lawsuit also sought to invalidate California’s other “sanctuary” laws: SB 54, which limits law enforcement officials’ cooperation with federal immigration enforcement officials, and AB 103, which gives state officials the authority to inspect the conditions of federal immigration detention facilities located in California. The Court declined to temporarily halt those provisions.
What This Means for California Employers:
Employers should continue to comply with AB 450’s requirements to notify employees before and after receiving a request to inspect I-9s or other employee records. Those notice requirements are very detailed, and violators incur significant monetary fines, so employers should take great care to understand these requirements, and should seek legal counsel as necessary.
For now, California is prohibited from enforcing AB 450’s prohibition against allowing federal immigration officials to inspect an employer’s non-public work areas without a warrant. Thus, employers who do permit these inspections will not be in violation of California law.