Regardless of what side of the debate you fall on, the new law in California prohibiting employers from granting voluntary consent to immigration authorities takes away a basic right of business owners and places companies in the middle of the dispute between the state and federal authorities with regard to undocumented alien workers.

Effective January 1, 2018, employers can no longer grant any federal agents access to non-public areas of a work-site:

  1. Except to verify the agent has an appropriate warrant and then only.
  2. If no employees are present.
  3. During such review, no consent to search the non-public areas may be given by the employer.

In fact, employers cannot release employee information or records to ICE without a subpoena and upon receiving notice of an inspection or audit, the employer must, within 72 hours of the notice, notify the State Labor Commissioner, the employees (or employee representative) of a work-site inspection and/or employment eligibility verification audit.  The notice must include:

  1. The name of the immigration authority conducting the inspection or audit.
  2. The date the employer received the notice of the inspection.
  3. The name of the inspection to the extent it is known.
  4. A copy of the notice of inspection.

Finally, under the new law, employers may not re-verify employment eligibility of a current employee unless required to do so by federal law.

This diminution of basic employer and property owner rights is, in my opinion, not only outrageous, but dangerous.  Again, while I do not dictate which side employers should fall on with regard to employing undocumented workers, the fact that you can no longer cooperate with federal authorities on property that you own or legally occupy is, in my opinion, outrageous.   The State of California has once again set itself directly in the cross-hairs of federal authorities but unfortunately does so by throwing employers in front (or proverbially “under the bus”) in order to act as the initial line of defense.  Employers faced with such a dilemma should politely inform any federal authorities that although it is not their choice, they must conform to California law and must require a subpoena and/or warrant before any such activities will be allowed to occur.  Done politely and professionally, the federal authorities should not take issue with the employer and instead agree to schedule the audit or inspection at a reasonable time.  Employers should then provide the required notice to the employees and the State Labor Commissioner and document the same being able to establish that the notice was given.

Finally, employers should not be shocked or even dismayed if they show upon the day scheduled for the inspection or audit and find some of their workers are “absent”.  Any employer who is unsure of their rights with regards to this or filling out I-9 forms can contact the law offices of Cohen Durrett and we will be happy to assist in making sure you are in compliance while minimizing your risk from both your state and federal governments.