(Newswire.net — March 30, 2018) — Here is a rundown of the new law under Government Code Section 7285.1:
Subsection (a) preserves the fourth amendment rights against unreasonable searches and seizures. It prohibits an employer or an HR consultant acting on behalf of the employer, from voluntarily consenting to give ICE access to nonpublic areas. This would apply if ICE simply showed up without a warrant or Notice to Produce and the employer willingly cooperated. It shuts down the employer who wants to be cooperative with federal agents, without the required paperwork.
As Fiona correctly observed in one of the last emails, the better procedure if ICE appears, is to take them to a “nonpublic area where employees are not present.” (7285.1(c)) and then review the documentation to see their authorization.
But you have to be careful here. There should be procedures in place as to: 1) what management employee will handle the interface with ICE and 2) the location of where to meet them. For example, meeting them in the lobby or entryway which has an employee receptionist or other persons present would technically be a violation. You need to meet them in some private room. Or presumably if there is no such private room available, someplace outside. Remember there are stiff penalties for noncompliance: $5000-$10,000.
To review employment immigration documents, including I-9’s, there must be what is called a judicial subpoena or warrant. This whole new law looks like it was thrown together at the last minute because of the urgency of the federal immigration debate. In so doing, they do not define what is meant by “judicial”. However, I can tell you it would clearly refer to a subpoena or warrant issued by the California Superior Court, as opposed to immigration authorities.
With a Notice of Inspection, ICE can clearly examine I-9 documents and the supporting paperwork for such a form. But can they also ask for other documents, including payroll records, lists of employees, etc.? Section 7285.2(a)(2) allows the examination of I-9 employment eligibility verification forms and other documents” The phrase “other documents” is not defined. In my previous memo I referred to an attorney blog which indicated those other documents could consist of payroll records, business licenses, and even articles of incorporation. But I’m not entirely certain whether that attorney opinion was correct. On further consideration, I believe the better rule would be any documents which verify or attached to the employees I-9, but nothing else. And I might be good idea to have these in a separate file.
The bottom line is that you must comply with an ICE Notice of Inspection by only providing the documents themselves. This does not give ICE the right to enter nonpublic places and meet with and question employees. For them to go onto your nonpublic areas, they would need a judicial search warrant.