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ICE Conducting Audits at Numerous California Locales; Labor Commissioner Releases AB 450-Required Notice Templates

Bryan Little, Farm Employers Labor Service

Original publication Jan. 17, 2018; Updated, Feb. 16, Mar. 23, and July 7, 2018 

UPDATE: July 7, 2018

The U.S. District Court for the Eastern District of California on July 4 enjoined enforcement by the State of California of the workplace access, document access and employment eligibility reverification provisions of AB 450 (Chiu, D-San Francisco), passed by the California Legislature in 2017.

The court let stand a provision of AB 450 that requires employers to notify employees of worksite enforcement actions or employment eligibility verification documents review by Immigration and Customs Enforcement (ICE), and of any enforcement action by ICE as a result of a document review.

You can read more here.

UPDATE: Feb. 16, 2018:

Immigration and Customs Enforcement continues to expand in California; the Los Angeles Times reported on Feb. 16 more than 120 southern California businesses were issued "Notice of Intent" or "72-hour" letters between Feb. 11 and Feb. 15.  The Fresno Bee reported the same day three Central Valley agricultural operations also recently received such notices.

The California Labor Commissioner has released templates for employers' use in complying with employee notice requirements of AB 450.  AB 450 requires employers to give employees certain notices of ICE enforcement activities; see this article from the December 2017 FELS Newsletter for more information on AB 450; scroll down to this subtitle:  "California Jumps into the Immigration Fray -- and Employers are Put Right in the Middle."  

You can access the Labor Commissioner's template in English at this link, and in Spanish at this link.

UPDATE: Feb. 2, 2018:

FELS has received reports that U.S. Immigration and Customs Enforcement (ICE) is auditing Forms I-9 of packing sheds in the Central Valley and the San Jose, Sacramento, and Bay Area regions.  No details are available. 

 

ICE agents seeking to audit your Forms I-9 and related documents will provide you with a "72-hour" or "Notice of Inspection" letter specifying which documents they are requesting and when and how they want you to transmit them. The other possibility is an onsite enforcement visit. 

 

In either instance, ICE often (though not always) has a search warrant or has issued a legal writ such as a subpoena to compel compliance. 

 

If an ICE agent seeks access to your business premises or access to Forms I-9 and related documents, you must comply with the requirements of Government Code sections 7582.1, 7582.2 and 7582.3 and of Labor Code sections 90.2 and 1019.2, effective as of Jan. 1, 2018. Briefly, those requirements are:
  • You may not permit a federal immigration enforcement agent to access non-public areas of your operations if that agent does not present a judicial warrant compelling access.  You may take that agent to a non-public area of your operation to verify the authenticity of a warrant being presented.
  • You may not furnish documents in addition to those specified in the "72-hour letter" or "Notice of Inspection" without being compelled to do so by a judicial warrant or subpoena.
  • You must give notice of inspection of Forms I-9 and related documents to employees within 72 hours of receiving the notice of inspection.  You must provide:
    • Notice of the date on which you received the Notice of Inspection;
    • A description of the nature of the inspection to the extent known; and,
    • A copy of the Notice of Inspection.
  • You must furnish a copy of any agency notice providing the results of the inspection of documents provided pursuant to the Notice of Inspection to affected employees (and any exclusive bargaining representative who may represent the employees) with 72 hours of receipt. This notice must include:
    • A description of deficiencies or other items identified in the written immigration inspection results related to the affected employee;
    • The time allowed (as specified by the inspecting agency) for correcting any deficiencies;
    • The time and date of any meeting with the employer to correct any identified deficiencies; and,
    • Notice that the employee has a right to representation (by any exclusive bargaining representative that may represent the employees).
  • You must also provide an affected employee with a copy of the Notice of Inspection upon reasonable request.

 

FELS can provide Spanish translation services should you require that service to comply with the requirements of AB 450.

 

On Jan. 10,  Immigration and Customs conducted surprise enforcement actions at 100 7-Eleven convenience stores in 18 states and the District of Columbia.

Acting ICE director Tom Homan told media, “Today’s actions send a strong message to U.S. businesses that hire and employ an illegal workforce: ICE will enforce the law and if you are found to be breaking the law you will be held accountable.”The Wall Street Journal described the enforcement actions like this: “Agents from ICE’s Homeland Security Investigations showed up unannounced at 98 convenience stores before dawn to interview store employees and managers, and serve notice employment records were being audited.” If that is an accurate description of ICE’s actions, it seems to indicate these activities are not a departure from recent ICE activities.  Early in 2017, ICE conducted several “sweeps” in urban areas around the U.S.  These sweeps consisted of traffic stops, roadblocks and targeted apprehensions of criminal aliens and individuals with pending deportation orders. 

More recently, ICE has focused on apprehending particular individuals; these activities typically consisted of ICE entering an apartment building, public area, or even a workplace looking for a particular person, who they then would apprehend and move on.  In the last few months, FELS has received reports of ICE apprehending a particular individual and taking any individual in the company of the person they were seeking who could not on the spot prove legal presence in the U.S.  That approach has led to at least one reported instance where ICE apprehended and kept in custody a person who was a green-card holder.

The Wall Street Journal’s description of the ICE enforcement actions of Jan. 10 also indicate that ICE served “audit notices;” these may be “3-day letters” (also called a “notice of inspection”) which ICE is required to furnish to employers when they intend to audit I-9-related documentation they intend to audit.This kind of activity is distinct from the “dragnet”-style raids ICE conducted in the 1970s and 1980s, where ICE enforcement agents would descend on a workplace, round up all employees and release them or take them into custody based on various criteria they believed indicated illegal presence.More recently, FELS has received reports of ICE stopping and taking into custody people they believe may be illegally present at bodegas, convenience stores, fast-food restaurants, and other locations in the early hours of the morning.  They apparently did this in the belief that workers in agriculture, construction, and similar occupations might be found at these places and times.

FELS offers assistance for agricultural employers to ensure compliance with the requirements of employment-related immigration laws (like the I-9 requirement) and related matters.  FELS also offers immigration compliance resources including I-9 self-audit forms to allow you to ensure your Forms I-9 are correctly completed, updated when needed, and correctly stored.  FELS subscribers also enjoy legal assistance benefits through the FELS Group Legal Services program; please contact the FELS office at 800-753-9073 for more information.