Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
On July 4, 2018, the U.S. Department of Justice obtained a partial victory in its challenge of California’s Immigrant Worker Protection Act ("Assembly Bill 450" or "AB 450") and other sanctuary laws when a California federal court held that certain provisions of AB 450 violated the Supremacy Clause of the Constitution.
AB 450 limits the extent to which private employers can cooperate with immigration enforcement agents, which for all practical purposes means Department of Homeland Security (DHS) agents from the U.S. Citizenship and Immigration Services (USCIS) or Immigration and Customs Enforcement (ICE). The statute also requires employers to provide notice to employees when DHS conducts enforcement actions, and prohibits employers from allowing DHS agents into non-public areas of a worksite without a judicial, as opposed to an administrative, warrant. The court did not enjoin AB 450’s requirement that private employers provide notice of immigration agency audits, such as an ICE Form I-9 audit, to employees and any authorized representative. The district court, however, preliminarily enjoined the remainder of AB 450, because the federal government was likely to prevail in its argument that the provisions violated the Supremacy Clause.
Specifically, the court preliminarily enjoined three components of AB 450. One provision prohibited employers from giving consent to an immigration enforcement agent to enter the employer’s premises without a warrant. The second provision similarly prohibited employers from giving consent to access, review, or obtain the employer’s employee records without a warrant. The third enjoined provision prohibited employers from re-verifying a current employee’s eligibility to work when not required by federal law. The district court held that each of these provisions imposed a monetary penalty on an employer merely because it wanted to cooperate with federal immigration enforcement, which violated the Supremacy Clause’s intergovernmental immunity doctrine.
For now, private employers in California are no longer prohibited from consenting to ICE agents entering its nonpublic premises or consenting to access, review, or obtain a current employee’s records. California can still prevail over this preliminary injunction as the case progresses, and we will continue to monitor the situation.
Still in effect is AB 450’s requirement that employers notify employees (and any applicable union representative) within 72 hours of receiving a notice of inspection from DHS in the event of an ICE I-9 audit or site visit from USCIS. At least for now, however, employers may allow an immigration enforcement official to enter non-public areas of a worksite without a warrant. Since this is a rapidly developing situation, employers should consult with legal counsel now to develop their response plan in the event of an immigration enforcement action.
*The authors wish to thank Summer Associate Beau Carter for his contributions to this article.