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Federal Court Blocks AB 450

July 7, 2018

Bryan Little, Farm Employers Labor Service

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.

In U.S. v. California, the court preliminarily enjoined the state from enforcing those provisions; the California Attorney General, Xavier Becerra, can ask the 9th U.S. Circuit Court of Appeals to lift that injunction. 

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 download and print the required notice document here and find more information about AB 450 compliance here.

The federal government unsuccessfully sought to enjoin enforcement of legislation passed by the Legislature in 2017 to prevent state government agencies from cooperating with ICE and requiring the California attorney general to investigate and report on conditions in detention facilities used by ICE.

The court’s decision in U.S. v. California relieves employers of the burden of navigating conflicting enforcement priorities of ICE and workplace protections enforced by the state.  California Farm Bureau Federation and a broad coalition of employers’ organizations expressed concern when AB 450 was moving through the Legislature that it would put employers in an impossible position when trying to fully comply with the Immigration and Nationality Act, which requires employers to verify the identity and employment eligibility of new hires by using information and documents furnished by employees to create and retain Forms I-9 and furnish those forms within three days when requested by ICE. AB 450 potentially forced an employer to thread the very small eye of a legal needle in trying to decide how to comply with its federal law responsibilities without inadvertently violating AB 450.   

AB 450 also prohibited an employer from choosing to cooperate with ICE by prohibiting the employer from granting ICE access to non-public areas of the business without a search warrant. AB 450 further prohibited employers from reverifying employees’ employment eligibility unless required to do so by federal law, creating a murky zone of potential non-compliance because federal law prohibits employers from hiring or continuing to employ employees knowing they are not employment authorized. In the case of a current employee, reverification of employment authorization is necessary where the employer has reason to believe an employee’s employment authorization might no longer be valid or was not really valid when the employee was hired.