On September 13, 2017, California legislators passed California Bill AB 450, also known as the Immigrant Worker Protection Act (“the Act”).  The Act is one of three immigration bills currently awaiting Governor Jerry Brown’s approval or veto.[1]

The Act imposes specific restrictions on employers in instances where U.S. Immigration and Customs Enforcement (“ICE”) agents seek access to their workplaces for immigration enforcement. Specifically, the Act prohibits employers from (1) voluntarily consenting to allow an ICE agent to enter nonpublic areas of the workplace absent a judicial warrant; and (2) voluntarily consenting to allow an ICE agent to access, review, or obtain employee records, absent a subpoena or a court order.

Additionally, the Act requires employers to (1) post written notice[2] of an immigration agency’s intent to audit employee records, including I-9 Employment Eligibility Verification forms, within 72 hours of the employer receiving notice of such an inspection; and (2) following an immigration agency’s audit, provide each employee who was found to lack work authorization with a copy of the written results of the inspection within 72 hours of the employer’s receipt.

Violations of the Act may result in a civil penalty of between two thousand dollars ($2,000) and five thousand dollars ($5,000) for a first violation and between five thousand dollars ($5,000) and ten thousand dollars ($10,000) for each subsequent violation, to be enforced by the Labor Commissioner or the Attorney General. All penalties recovered under the Act shall be deposited in the Labor Enforcement and Compliance Fund.

At this time, the ultimate constitutionality of the Act is uncertain under Chamber of Commerce v. Whiting, 563 U.S. 582 (2011), in view of the steep monetary penalties it threatens to impose.

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[1] California legislators also recently passed the California Values Act (which is intended to prevent law enforcement officials from questioning and detaining individuals based on immigration violations alone) and the Immigrant Tenant Protection Act  (which prohibits landlords from reporting or threatening to report the immigration status of their tenants as a form of retaliation or to prompt an eviction.)

[2] No later than July 1, 2018, the Labor Commissioner will release a template to assist employers in complying with the notice posting requirements imposed by the Act.

When: Thursday, September 14, 2017 8:00 a.m. – 4:30 p.m.

Where: New York Hilton Midtown, 1335 Avenue of the Americas, New York, NY 10019

Epstein Becker Green’s Annual Workforce Management Briefing will focus on the latest developments in labor and employment law, including:

  • Immigration
  • Global Executive Compensation
  • Artificial Intelligence
  • Internal Cyber Threats
  • Pay Equity
  • People Analytics in Hiring
  • Gig Economy
  • Wage and Hour
  • Paid and Unpaid Leave
  • Trade Secret Misappropriation
  • Ethics

We will start the day with two morning Plenary Sessions. The first session is kicked off with Philip A. Miscimarra, Chairman of the National Labor Relations Board (NLRB).

We are thrilled to welcome back speakers from the U.S. Chamber of Commerce. Marc Freedman and Katie Mahoney will speak on the latest policy developments in Washington, D.C., that impact employers nationwide during the second plenary session.

Morning and afternoon breakout workshop sessions are being led by attorneys at Epstein Becker Green – including some contributors to this blog! Commissioner of the Equal Employment Opportunity Commission, Chai R. Feldblum, will be making remarks in the afternoon before attendees break into their afternoon workshops. We are also looking forward to hearing from our keynote speaker, Bret Baier, Chief Political Anchor of FOX News Channel and Anchor of Special Report with Bret Baier.

View the full briefing agenda and workshop descriptions here.

Visit the briefing website for more information and to register, and contact Sylwia Faszczewska or Elizabeth Gannon with questions. Seating is limited.

The Immigration Law Group at Epstein Becker Green released a Special Immigration Alert that will be of interest to our readers.

Topics include:

  1. President Trump Issues Revised Executive Order on Travel
  2. USCIS Suspends Premium Processing for H-1B Petitions Starting April 3, 2017: All H-1B Petitions, Including H-1B Cap Petitions, Are Affected!
  3. Use of New Form I-9 Is Now Mandatory
  4. IRS Announces That Delinquent Taxpayers Face Revocation/Denial of U.S. Passports
  5. DHS Issues Two New Memos on Enforcement/Border Security

Read the full alert here.

Robert S. Groban, Jr. and the Immigration Law Group of Epstein Becker Green recently issued an alert that will be of interest to employers. Following are the main topic headings:

Read the full alert here.

Robert Groban and the Immigration Law Group of Epstein Becker Green recently issued an alert that will be of interest to employers. Following are the main topic headings:

Read the full alert here.

We recommend this recent client alert on Epstein Becker Green’s website: “Special Immigration Alert: The Immigration Ripple Effect of a Government Shutdown,” by Robert Groban, Jr., Pierre Georges Bonnefil, Patrick Brady, Jang Im, and Greta Ravitsky, our colleagues at Epstein Becker Green.

Following is an excerpt:

The looming prospect of a Government shutdown will have a significant impact on the immigration process. Activities of the U.S. Citizenship and Immigration Services (USCIS) will be largely unaffected because it is funded by the fees it collects. The shutdown, however, may affect the ability of applicants to secure the government information required to respond to Requests for Evidence.

Read the full client alert here.

By: Robert Groban and Susan Gross Sholinsky

Recent settlements with Forever 21 and Macy’s announced by the U.S. Justice Department’s Office of Special Counsel (“OSC”) underscore the importance to retail employers of training staff regarding the anti-discrimination provisions of the Form I-9 requirements.

Most employers are familiar with the Form I-9 requirements that direct employers to obtain original documentation establishing the identity and work authorization of all new employees hired since November 7, 1986.  In their eagerness to satisfy their Form I-9 obligations, however, many employers, including a growing number in the retail industry, fail to comply with the anti-discrimination provisions of the law.

The Form I-9 requirements are contained in the Immigration Reform and Control Act of 1986 (“IRCA”).  When Congress passed IRCA, however, it recognized that this was the first time employers had been required to inquire whether new employees were authorized to work, and it was concerned that many employers might misuse the law to discriminate against “foreign looking” employees.  To guard against this possibility, Congress included several anti-discrimination provisions in IRCA that define unfair immigration-related employment practices.  These include asking for more or different documents than IRCA requires, asking for specific documents, applying the Form I-9 requirements differently to various applicants, limiting applicants to just U.S. citizens absent legal justification.  Congress also created the OSC to enforce these anti-discrimination provisions.

In Forever, 21, the OSC alleged that the company violated IRCA when it required a prospective employee to produce a permanent residence or “green card”, and refused to accept a valid employment authorization document (“EAD”).  A valid EAD is a document that satisfies the Form I-9 requirements under IRCA.  By refusing to accept the candidate’s EAD and insisting on a green card, the employer allegedly violated IRCA’s anti-discrimination requirements.  Under the terms of the settlement, Forever 21 agreed to pay a civil fine and back pay.

The OSC brought similar claims against Macy’s Retail Holdings, Inc., Macy’s Florida Stores, LLC, Macy’s Puerto Rico, Inc. and Macy’s West Stores, Inc. (collectively, “Macy’s”). The OSC alleged that Macy’s refused to accept documents presented by new hires that appeared on their face to be genuine and instead asked these employees for more or different documents than IRCA allows.  Macy’s agreed to pay $175,000 in civil penalties and to establish a $100,000 fund to compensate employees damaged as a result of its practices.

These settlements by the OSC underscore the dangers that employers in the retail industry face if they focus too intently on compliance with the Form I-9 employment eligibility verification process.  With the emphasis placed on Form I-9 compliance, many of these employers forget these provisions and the substantial penalties and other obligations that they carry.  These settlements are but the latest reminders to retail and other employers of the importance of training staff on these other aspects of the Form I-9 process.

By: Robert S. Groban, Jr.

On March 8, 2013, the USCIS published a notice in the Federal Register announcing that it had recently revised the Employment Eligibility Verification form (“Form I-9”), and that employers must start using this new form by May 7, 2013.  Employers using prior versions of the Form I-9 on or after May 8, 2013, will violate the law and be subject to worksite enforcement fines and other penalties.

[Excerpt from EBG April 2013 Immigration Alert.  Click here to read the entire Immigration Alert.]