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Section of international border wall between San Diego/Tijuana.

Federal Judge Stays California Sanctuary State Employer Law

July 19, 2018
Law imposed penalties on employers who cooperated with immigration investigations.

A federal district judge stayed a California law that penalized employers who choose to cooperate with federal immigration officials who didn’t present them with a warrant or subpoena first.

Called AB 450, the law was enacted last year and went into effect on Jan. 1. It was just one of a series of state laws passed by the state legislature and signed by Gov. Jerry Brown with the declared intent of making California a “sanctuary state” for illegal immigrants who are under attack by the Trump Administration.

Several of the new laws limited or ended cooperation with federal officials by law enforcement officials and other state employees. Those laws remain in place, although they also are being challenged in court by the Trump Department of Justice.

On July 4, U.S. District Court Judge John. A. Mendez issued an order enjoining enforcement of AB 450, which had imposed fines on private employers of up to $10,000 per violation if they voluntarily consented to giving federal immigration authorities access to nonpublic areas of their worksites and to certain kinds of employee records without first demanding to see a judicially-issued warrant or a subpoena.

AB 450 also prohibited an employer from re-verifying the employment eligibility of a current employee at a time or in a manner that was not required by federal law. The law also authorized the state Labor Commissioner to recover civil penalties of up to $10,000 for violations of this provision of the law as well.

Judge Mendez wrote that “a law which imposes monetary penalties on an employer solely because that employer voluntarily consents to federal immigration enforcement’s entry into nonpublic areas of their place of business or access to their employment records impermissibly discriminates against those who choose to deal with” the federal government. “These fines inflict a burden on those employers who acquiesce in a federal investigation but not on those who do not,” he said.

However, as written the California law does not apply to federal obligations regarding I-9 forms and other federally-required documents when federal immigration officials have provided the employer with a Notice of Inspection. An employer who violates these requirements can face a federal civil penalty of $2,000 to $5,000 for a first violation, and $5,000 to $10,000 for each subsequent violation and that did not change with enactment of AB 450.

Notification Still Required

In regard to California’s attempted ban on employer reverification of an employee’s immigration status, the judge ruled that the Trump administration was likely to prevail on its challenge and stayed enforcement of this portion of the state law against private employers.

Mendez said the ban on reverification “appears to stand as an obstacle” to Congress’s intent in enacting a law that prohibits employers from knowingly employing unauthorized individuals. “The law frustrates the system of accountability that Congress designed,” the judge declared in his decision.

The state law also imposed a number of new notification requirements on California employers that the judge decided to let stand. One directs employers to provide current employees with a notice of any inspection of I-9 forms or other employment records within 72 hours of receiving a notice of the inspection.

In addition, following a reasonable request, an employer must provide an employee with a copy of a Notice of Inspection of the I-9 forms. Employers also are required to provide the affected employees and their representatives (usually meaning a union) with a copy of the inspection results within 72 hours of having received them. Employees must be supplied as well with a written notice of the obligations of the employer and the affected employees that will result from the inspection.

The judge held that the Trump administration challenges to these notice provisions were without merit and denied its request for a preliminary injunction. The court held that these provisions merely enacted a notice requirement to employees and otherwise did not interfere with an employer’s obligations under federal immigration law.

The judge reasoned that under these notice provisions an employer is not being punished for its choice to work with the federal government (as with the “consent” provisions), but instead for its failure to communicate with employees.

The ultimate outcome of the Trump administration’s court challenges to AB 450 will be determined in further litigation. “This is just the latest step in an epic battle between the California legislature and the Trump administration over immigration issues—and neither side is likely to give up this fight easily,” observed attorney Benjamin Ebbink of the law firm of Fisher Phillips.

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