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AB-450 Employment regulation: immigration worksite enforcement actions.(2017-2018)

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Date Published: 06/21/2017 09:00 PM
AB450:v95#DOCUMENT

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


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

February 13, 2017


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 immigration enforcement agent access to nonpublic areas of a place of labor without a warrant and, except as otherwise provided by federal law, would prohibit an employer from providing voluntary access to a federal government immigration enforcement agent to the employer’s employee records without a subpoena. The bill, except as prohibited by federal law, would require an employer to provide an employee, and the employee’s representative, a written notice containing specified information, 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 immigration agency within 24 hours of receiving the federal notice of inspection. The bill would require an employer to provide to an affected employee, and to the employee’s representative, a copy of the written federal immigration agency notice that provides for the inspection and written notice of the obligations of the employer and the affected employee arising from the action, as specified. 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 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 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’ representative upon learning of the action, unless prohibited by federal law. The bill would require an employer to notify the Labor Commissioner before conducting a self-audit or inspection of specified employment eligibility verification forms, and before checking the employee work authorization documents of a current employee, unless otherwise required by federal law. The bill would prohibit an employer from checking reverifying the employment eligibility of a current employee, including conducting a self-audit or inspection of specified employment eligibility verification forms 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 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.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

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 immigration enforcement agent to any nonpublic areas of a place of labor without 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 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 applies to public and private employers.

SEC. 2.

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

90.2.
 (a) Except as otherwise provided by federal law, an employer, or a person acting on behalf of the employer, shall not provide voluntary access to a federal immigration enforcement agent to the employer’s employee records, including, but not limited to, I-9 Employment Eligibility Verification forms, without a subpoena.
(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) This section applies to public and private employers.

SEC. 3.

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

90.25.
 (a) Except as prohibited by federal law, an employer shall provide to each employee, and the employee’s representative, a written notice, 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 immigration agency within 24 hours of receiving notice of the inspection. The notice 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 representative. The notice shall contain the following information:
(1) The name of the federal immigration agency conducting the inspections of I-9 Employment Eligibility Verification forms or other employment records.
(2) The date that the employer received notice of the inspection.
(3) The nature of the inspection to the extent known.
(4) A copy of the notice of inspection of I-9 Employment Eligibility Verification forms or other employment records to be conducted.
(5) Any other information that the Labor Commissioner deems material and necessary.
(b) Except as prohibited by federal law, an employer shall provide to each affected employee, and to the employee’s representative, 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 24 hours of its receipt of the notice. Within 24 hours of its receipt of this notice, the employer shall also provide to each affected employee, and to the affected employee’s representative, 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 representative. The notice shall contain the following information:
(1) A description of any and all deficiencies or other items identified in the written federal immigration inspection results notice.
(2) The time period for correcting any potential deficiencies identified by the federal immigration agency.
(3) The time and date of any meeting with the employer to correct any identified deficiencies.
(4) Notice that the employee has the right to representation during any meeting scheduled with the employer.
(5) Any other information that the Labor Commissioner deems material and necessary.
(c) An employer who fails to provide notice to all affected employees or their representatives 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 affected employee at the express and specific direction or request of the federal government. The penalty shall be recoverable by the Labor Commissioner.
(d) 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’ representative 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.

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 before conducting a self-audit of, inspection of, or review of, I-9 Employment Eligibility Verification forms and 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.

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.

 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 check reverify the employment eligibility of a current employee, including conducting a self-audit of, or inspection of, I-9 Employment Eligibility Verification forms, employee at a time or in a manner not required by Section 1324a(b) of Title 8 of the United States Code.
(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.

SEC. 8.

 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.