Bill Text: CA AB450 | 2017-2018 | Regular Session | Amended

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Employment regulation: immigration worksite enforcement actions.

Spectrum: Partisan Bill (Democrat 7-0)

Status: (Passed) 2017-10-05 - Chaptered by Secretary of State - Chapter 492, Statutes of 2017. [AB450 Detail]

Download: California-2017-AB450-Amended.html

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Amended  IN  Senate  September 01, 2017

Amended  IN  Senate  July 18, 2017

Amended  IN  Senate  June 21, 2017

Amended  IN  Assembly  May 30, 2017

Amended  IN  Assembly  April 27, 2017

Amended  IN  Assembly  March 23, 2017

CALIFORNIA LEGISLATURE— 2017–2018 REGULAR SESSION

Assembly Bill

No. 450

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Introduced by Assembly Member Chiu
(Coauthors: Assembly Members Bonta, Cristina Garcia, Gonzalez Fletcher, Santiago, and Ting)
(Coauthor: Senator Wiener)

February 13, 2017

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An act to add Sections 90.1, 90.2, 90.25, 90.8, 90.9, 98.85, and 1019.2 to the Labor Code, relating to employment regulation.

LEGISLATIVE COUNSEL'S DIGEST

AB 450, as amended, Chiu. Employment regulation: immigration worksite enforcement actions.

Existing law prohibits an employer or other person or entity from engaging in, or to directing another person or entity to engage in, unfair immigration-related practices against a person for exercising specified rights. Existing law defines unfair immigration-related practices for these purposes. Existing law grants the Labor Commissioner access to places of labor and authorizes the commissioner to conduct investigations and prosecute actions in relation to the prescribed duties of the office.

This bill would impose various requirements on public and private employers with regard to federal immigration agency immigration worksite enforcement actions. Except as otherwise required by federal law, the bill would prohibit an employer from providing a federal voluntary consent to an immigration enforcement agent access to enter nonpublic areas of a place of labor without a warrant, except as specified, and, except as otherwise provided by federal law, specified. Except as required by federal law, the bill would prohibit an employer from providing voluntary access to a federal government consent to an immigration enforcement agent to access, review, or obtain the employer’s employee records without a subpoena. subpoena, subject to a specified exception. The bill, except as prohibited by federal law, would require an employer to provide a current employee, and the employee’s authorized representative, if any, a written employee notice containing specified information, by the method and posting in the language the employer normally uses to communicate employment information, of an inspection of I-9 Employment Eligibility Verification forms or other employment records conducted by a federal an immigration agency within 72 hours of receiving the federal notice of inspection. The bill would require an employer, upon reasonable request, to provide an affected employee a copy of the notice of inspection of I-9 Employment Eligibility Verification forms. The bill would require the Labor Commissioner, by July 1, 2018, to create a form for these purposes and make it available, as specified. The bill would require an employer to provide to an affected current employee, and to the employee’s authorized representative, if any, a copy of the written federal immigration agency notice that provides for the inspection results and written notice of the obligations of the employer and the affected employee arising from the action, as specified. The bill would define affected employee for these purposes. Except as required by federal law, the bill would prohibit an employer from reverifying the employment eligibility of a current employee at a time or in a manner not required by specified federal law. The bill would prescribe penalties for failure to satisfy requirements and prohibitions of not less than $2,000 or more than $5,000 for a first violation and not less than $5,000 or more than $10,000 for each subsequent violation, to be recoverable by the Labor Commissioner. The bill would specify that the Attorney General may prosecute a civil action for a violation of certain of these prohibitions. The bill would authorize the Labor Commissioner to waive or lower the fine for permitting access to nonpublic areas of a place of labor without a judicial warrant, as specified. The bill would provide that its provisions are severable.

The bill would require an employer to notify the Labor Commissioner of a federal government immigration agency immigration worksite enforcement action within 24 hours of receiving notice of the action and, if the employer does not receive advance notice, to immediately notify the Labor Commissioner and the employees’ authorized representative, if any, upon learning of the action, unless prohibited by federal law. The bill would require an employer to notify the Labor Commissioner and the employees’ authorized representative, if any, before checking the employee work authorization documents of a current employee, unless otherwise required by federal law. The bill would prohibit an employer from reverifying the employment eligibility of a current employee at a time or in a manner not required by specified federal law. The bill would prescribe penalties for failure to satisfy requirements and prohibitions of not less than $2,000 or more than $5,000 for a first violation and not less than $5,000 or more than $10,000 for each subsequent violation, to be recoverable by the Labor Commissioner. The bill would define an authorized representative, for the purposes described above, as a collective bargaining representative.

The bill would require the Labor Commissioner, upon a determination that an employee complainant or employee witness is necessary to conduct an investigation or prosecution, as specified, to issue a certification to the employee stating that he or she has submitted a valid complaint and is cooperating in the investigation and prosecution. The bill would provide that its provisions are severable.

Digest Key

Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

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Bill Text

The people of the State of California do enact as follows:

SECTION 1.

 Section 90.1 is added to the Labor Code, to read:

90.1.

 (a) Except as otherwise required by federal law, an employer, or a person acting on behalf of the employer, shall not provide access to a federal government voluntary consent to an immigration enforcement agent to enter any nonpublic areas of a place of labor without being provided a judicial warrant.

(b) An employer who violates subdivision (a) shall be subject to a civil penalty of not less than two thousand dollars ($2,000) or more than five thousand dollars ($5,000) for a first violation and not less than five thousand dollars ($5,000) or more than ten thousand dollars ($10,000) for each subsequent violation. The penalty shall be recoverable by the Labor Commissioner. The Labor Commissioner may lower or waive the civil penalty if a federal government an immigration enforcement agent accesses the nonpublic areas of a place of labor without the consent of the owner or other person in control of the place of labor.

(c) This section shall not preclude an employer or person acting on behalf of an employer from taking the federal government immigration enforcement agent to a nonpublic area, where employees are not present, for the purpose of verifying whether the federal government immigration enforcement agent has a judicial warrant, provided no consent to search nonpublic areas is given in the process.

(d) This section applies to public and private employers.

(e) An action for relief of a violation of this section may be prosecuted in a court of competent jurisdiction in a civil action brought in the name of the people of the State of California by the Attorney General or by the Labor Commissioner.

SEC. 2.

 Section 90.2 is added to the Labor Code, to read:

90.2.

 (a) (1) Except as otherwise provided required by federal law, and except as provided in paragraph (2), an employer, or a person acting on behalf of the employer, shall not provide voluntary access to a federal consent to an immigration enforcement agent to access, review, or obtain the employer’s employee records, including, but not limited to, I-9 Employment Eligibility Verification forms, records without a subpoena. This section does not prohibit an employer, or person acting on behalf of an employer, from challenging the validity of a subpoena in a federal district court.

(2) If an employer has been provided a Notice of Inspection, subdivision (a) does not apply to I-9 Employment Eligibility Verification forms.

(b) An employer who violates subdivision (a) shall be subject to a civil penalty of not less than two thousand dollars ($2,000) or more than five thousand dollars ($5,000) for a first violation and not less than five thousand dollars ($5,000) or more than ten thousand dollars ($10,000) for each subsequent violation. The penalty shall be recoverable by the Labor Commissioner.

(c) An action for relief of a violation of this section may be prosecuted in a court of competent jurisdiction in a civil action brought in the name of the people of the State of California by the Attorney General or by the Labor Commissioner.

(c)

(d) This section applies to public and private employers.

SEC. 3.

 Section 90.25 is added to the Labor Code, to read:

90.25.

 (a) (1) Except as prohibited otherwise required by federal law, an employer shall provide a written notice to each current employee, by the method and posting in the language the employer normally uses to communicate employment-related information to the employee, of any inspections of I-9 Employment Eligibility Verification forms or other employment records conducted by a federal an immigration agency within 72 hours of receiving notice of the inspection. Written notice shall also be given within 72 hours to the employee’s authorized representative, if any. The posted notice shall contain the following information:

(A) The name of the federal immigration agency conducting the inspections of I-9 Employment Eligibility Verification forms or other employment records.

(B) The date that the employer received notice of the inspection.

(C) The nature of the inspection to the extent known.

(D) A copy of the notice of inspection Notice of Inspection of I-9 Employment Eligibility Verification forms or other employment records for the inspection to be conducted.

(E)Any other information that the Labor Commissioner deems material and necessary.

(2) On or before July 1, 2018, the Labor Commissioner shall develop a form that employers may use to comply with the requirements of subdivision (a) to inform employees of a notice of inspection to be conducted of I-9 Employment Eligibility Verification forms or other employment records conducted by a federal an immigration agency. The form shall be available on the Labor Commissioner’s website so that it is accessible to any employer.

(3) An employer, upon reasonable request, shall provide an affected employee a copy of the Notice of Inspection of I-9 Employment Eligibility Verification forms.

(b) (1) Except as prohibited otherwise required by federal law, an employer shall provide to each current affected employee, and to the employee’s authorized representative, if any, a copy of the written federal government immigration agency notice that provides the results of the inspection of I-9 Employment Eligibility Verification forms or other employment records within 72 hours of its receipt of the notice. Within 72 hours of its receipt of this notice, the employer shall also provide to each affected employee, and to the affected employee’s authorized representative, if any, written notice of the obligations of the employer and the affected employee arising from the results of the inspection of I-9 Employment Eligibility Verification forms or other employment records. The notice shall relate to the affected employee only and shall be delivered by hand at the workplace if possible and, if hand delivery is not possible, by mail and email, if the email address of the employee is known, and to the employee’s authorized representative. The notice shall contain the following information:

(A) A description of any and all deficiencies or other items identified in the written federal immigration inspection results notice. notice related to the affected employee.

(B) The time period for correcting any potential deficiencies identified by the federal immigration agency.

(C) The time and date of any meeting with the employer to correct any identified deficiencies.

(D) Notice that the employee has the right to representation during any meeting scheduled with the employer.

(E)Any other information that the Labor Commissioner deems material and necessary.

(2) For purposes of this subdivision, an “affected employee” is an employee identified by the federal government immigration agency inspection results to be an employee who may lack work authorization, or an employee whose work authorization documents have been identified by the federal government immigration agency inspection to have deficiencies.

(c) An employer who fails to provide the notices required by this section shall be subject to a civil penalty of not less than two thousand dollars ($2,000) or more than five thousand dollars ($5,000) for a first violation and not less than five thousand dollars ($5,000) or more than ten thousand dollars ($10,000) for each subsequent violation. This section does not require a penalty to be imposed upon an employer or person who fails to provide notice to an employee at the express and specific direction or request of the federal government. The penalty shall be recoverable by the Labor Commissioner.

(d) For purposes of this section, an “employee’s authorized representative” means a collective bargaining an exclusive representative.

(e) This section applies to public and private employers.

SEC. 4.Section 90.8 is added to the Labor Code, to read:

90.8.

(a)This section applies to public and private employers.

(b)Except as prohibited by federal law, every employer shall notify the Labor Commissioner of any federal immigration agency immigration worksite enforcement action within 24 hours of receiving notice of the action from the federal immigration agency. Immigration worksite enforcement action includes audits or inspections of I-9 Employment Eligibility Verification forms or other employment records, worksite investigations, worksite interviews of employees, worksite raids, or any other immigration worksite enforcement action conducted by the federal immigration agency.

(c)Except as prohibited by federal law, if an employer does not receive advance notice of an immigration worksite enforcement action and a federal immigration agent appears on or near the employer’s place of employment, the employer shall immediately notify the Labor Commissioner and the employees’ authorized representative, if any, upon learning of the immigration worksite enforcement action.

(d)An employer who fails to provide a notice required by this section shall be subject to a civil penalty of not less than two thousand dollars ($2,000) or more than five thousand dollars ($5,000) for a first violation and not less than five thousand dollars ($5,000) or more than ten thousand dollars ($10,000) for each subsequent violation. This section does not require a penalty to be imposed upon an employer or person who fails to notify the Labor Commissioner of the immigration worksite enforcement action at the express and specific direction or request of the federal government or if otherwise required by federal law. The penalty shall be recoverable by the Labor Commissioner.

(e)For purposes of this section, an “employee’s authorized representative” means a collective bargaining representative.

SEC. 5.Section 90.9 is added to the Labor Code, to read:

90.9.

(a)This section applies to public and private employers.

(b)Except as otherwise required by federal law, every employer shall notify the Labor Commissioner and the employee’s authorized representative, if any, before checking the employee work authorization documents of a current employee at a time or in a manner not required by Section 1324a(b) of Title 8 of the United States Code.

(c)An employer who fails to provide notice shall be subject to a civil penalty of not less than two thousand dollars ($2,000) or more than five thousand dollars ($5,000) for a first violation and not less than five thousand dollars ($5,000) or more than ten thousand dollars ($10,000) for each subsequent violation. This section does not require a penalty to be imposed upon an employer or person who fails to notify the Labor Commissioner of the immigration worksite enforcement action at the express and specific direction or request of the federal government or if otherwise required by federal law. The penalty shall be recoverable by the Labor Commissioner.

(d)For purposes of this section, an “employee’s authorized representative” means a collective bargaining representative.

SEC. 6.Section 98.85 is added to the Labor Code, to read:

98.85.

If the Labor Commissioner determines that an employee complainant or employee witness is necessary to conduct an investigation or prosecution for the collection of wages, penalties, other compensation, or for the return of workers’ tools as set forth in Section 98.3, or that the employee is necessary to conduct an investigation or prosecution of a discrimination charge as set forth in Sections 98.6 and 98.7, the Labor Commissioner shall issue a certification to the employee complainant or employee witness stating that he or she has submitted a valid complaint for violations of this code and is cooperating in the investigation and prosecution of the violations.

SEC. 7.SEC. 4.

 Section 1019.2 is added to the Labor Code, to read:

1019.2.

 (a) Except as otherwise required by federal law, a public or private employer, or a person acting on behalf of a public or private employer, shall not reverify the employment eligibility of a current employee at a time or in a manner not required by Section 1324a(b) of Title 8 of the United States Code.

(b) An (1) Except as provided in paragraph (2), an employer who violates subdivision (a) shall be subject to a civil penalty of not less than two thousand dollars ($2,000) or more than five thousand dollars ($5,000) for a first violation and not less than five thousand dollars ($5,000) or more than ten thousand dollars ($10,000) for each subsequent violation. The penalty shall be recoverable by the Labor Commissioner.

(2) The actions of an employer that violate subdivision (a) and result in a civil penalty under paragraph (1) shall not also form the basis for liability or penalty under Section 1019.1.

SEC. 8.SEC. 5.

 The provisions of this act are severable. If any provision of this act or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.