In response to the Trump administration’s stance on immigration enforcement, California is considering legislation (Assembly Bill 450 (Chiu)) which would prohibit employers from providing federal immigration officials with access to nonpublic areas of the workplace without a judicial warrant. While aiming to provide new protections to workers, the bill’s broad language does not eliminate any employer obligations currently arising from Federal law. It does, however, have the potential to create contradictory and burdensome new requirements for employers in cases of government worksite investigations and internal audits conducted for compliance purposes.

AB 450 was introduced in February of this year and has been amended several times. The bill specifically references I-9 audits in many sections, while generally referencing government worksite enforcement actions in others. AB-450 would require employers to, among other things, notify all employees and their representatives, in writing, within 24 hours, that a worksite enforcement action has occurred. The requirement for notification of employee representatives probably refers to unions, but there are other circumstances when an employer may know an employee has legal representation (i.e. active workers compensation claims brought on behalf of employees). This requirement could arguably require an employer to maintain a list of the representatives of all employees for use in the event of such action. Moreover, the bill’s broad language may extend its notification requirements to include routine site visits performed for H-1B, L-1, and other nonimmigrant visa workers, as well as any other immigration-related inquiries conducted by any U.S. government agency, such as the U.S. Department of State or the U.S. Department of Labor. In addition to requiring notice in cases of government action, the bill would also require employers to notify the California Labor Commissioner prior to performing a self-audit of Forms I-9, a process many employers undertake to ensure compliance with Federal law.

The penalties AB 450 proposes for violations are significant. Employers who fail to comply could be assessed from $2,000 to more than $5,000 for a first violation and from $5,000 to more than $10,000 for each subsequent violation.

AB 450 passed the Assembly on May 31 and has been referred to the Senate Labor and Industrial Relations and Senate Judiciary Committees. Because it is keyed fiscal, the deadline for action by these policy committees is June 14, just prior to the legislature’s month long summer recess. We will keep you updated on the bill’s progress as it could have a significant impact on the internal policies of any California employer.

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Photo of Courtney B. Noce Courtney B. Noce

Courtney B. Noce co-chairs the Immigration & Compliance Practice. She focuses her practice on U.S. business immigration, compliance and enforcement actions, as well as global immigration. She represents both large multinational companies and small start-ups on the full range of employment-based immigration, ranging

Courtney B. Noce co-chairs the Immigration & Compliance Practice. She focuses her practice on U.S. business immigration, compliance and enforcement actions, as well as global immigration. She represents both large multinational companies and small start-ups on the full range of employment-based immigration, ranging from permanent residence (PERM, National Interest Waivers, Extraordinary Ability/Outstanding Researcher, Multi-National Managers, among others) to nonimmigrant visa categories (H-1B, H-3, J-1, L-1A/B, O-1, TN). Courtney has a particular understanding of working with the retail industry and the ever-evolving challenges this industry faces.

Courtney works closely with companies on complex challenges associated with I-9 employment verification, enforcement actions, as well as H-1B and LCA compliance. She provides proactive strategies in the form of onsite training, internal audits and reviews, as well as deploying best practices to minimize exposure and liabilities in the event of government investigations.

Courtney also assists multinational clients in the area of global mobility and immigration. She has experience helping companies move key personnel into all parts of the world.

Prior to practicing law Courtney worked with the Georgia Department of Economic Development as a Business Development and Project Manager. In this role, she helped Life Sciences and Technology companies move to and expand in the State of Georgia. She worked frequently with international and domestic companies addressing global mobility needs, and is acutely aware of the important role immigration plays for global companies.

Courtney has studied, lived, and worked in Canada, France, and Italy. She is fluent in Italian, proficient in French and has basic Spanish skills.

Photo of James Nelson James Nelson

James M. Nelson is Co-Chair of the firm’s Labor & Employment Practice’s ERISA & Employee Benefits Litigation group. He represents employers and ERISA plan fiduciaries in matters concerning ERISA compliance, fiduciary responsibility, collective bargaining, wage and hour, employee benefits, safety, discrimination, wrongful termination…

James M. Nelson is Co-Chair of the firm’s Labor & Employment Practice’s ERISA & Employee Benefits Litigation group. He represents employers and ERISA plan fiduciaries in matters concerning ERISA compliance, fiduciary responsibility, collective bargaining, wage and hour, employee benefits, safety, discrimination, wrongful termination, and other labor and employment issues. His experience includes complex litigation, class action defense, administrative proceedings, and appeals, as well as advice and counseling to ERISA plan fiduciaries of single-employer and multi-employer plans. He counsels clients on Occupational Safety and Health Administration (OSHA) matters including litigation as well as compliance, due diligence reviews, and safety and health audits. James has counseled clients in numerous industries, including construction, transportation, health care, hospitality, manufacturing, and publishing.

Photo of Jeffrey Leacox Jeffrey Leacox

Jeffrey Leacox has represented businesses and trade associations before the California Legislature, the Governor and state agencies for more than two decades. He has wide-ranging public policy experience in business regulation, civil justice and tort reform, corporate governance, employment, health care, insurance, taxation…

Jeffrey Leacox has represented businesses and trade associations before the California Legislature, the Governor and state agencies for more than two decades. He has wide-ranging public policy experience in business regulation, civil justice and tort reform, corporate governance, employment, health care, insurance, taxation and technology.