California Employers Need to Know Their Rights and Duties During ICE Raids

Starting in January of this year, California employers have new obligations to protect employees when dealing with Immigration and Customs Enforcement (ICE) inspections and raids. Under the new law, employers must notify employees of certain ICE enforcement actions and keep certain employment records confidential unless ICE officers present a subpoena or judicial warrant.

So-called “sanctuary cities” have pledged not to cooperate with ICE raids, other than what is mandated by state or federal law. The Immigrant Worker Protection Act applies to private California employers of all sizes, and requires the following:

  • Employers may not voluntarily consent to allow ICE officials into areas of the workplace that aren’t otherwise public;
  • Employers may not voluntarily allow ICE officials access to employment records;
  • Employers must give employees notice of federal “Form I-9” inspections of employee records.

The California Labor Commissioner has a template, available here, to assist in alerting employees to such inspections.

Employers are also required to share with “affected employees” the results of ICE raids and inspections.

Regarding access to the workplace or employment records, under the new law ICE officials need a warrant or subpoena in order to force compliance. Companies should prepare in advance for raids by training the employees who will likely interact with federal agents what they can and can’t do or say, and what kind of documentation to request of federal immigration agents. Additionally, given the 72-hour requirement for notification, it’s wise to have notification systems in place in advance of any action.

Penalties are steep; up to $10,000 per violation.

On July 4, 2018, however, a federal judge prohibited enforcement of some parts of the law. This means that California employers cannot be prosecuted for allowing immigration agents to access nonpublic areas of the workplace or voluntarily allowing ICE access to employee records. Employers are still mandated to provide notice of scheduled inspections, as well as the results of those inspections.

Requirements could change, as the law is being challenged in court. Employers should keep in close contact with immigration or employment counsel to ensure they have up-to-date information about current compliance requirements.