Publication Details

Special Alert: Division of Labor Standards Enforcement Publishes Model Posting for Employer Usage Preceding Immigration Agency Inspection of Employment Records

Feb 12, 2018 | Related Attorney Michael S. Kalt | Topic: Employment

Taking effect January 1, 2018, AB 450 was certainly one of the more significant new employment laws confronting California employers, and it has continued to generate headlines as the federal government increases worksite enforcement to ensure employment eligibility.  As discussed in greater detail in /tasks/sites/wtk/assets/file/01803485.DOCX, AB 450 (1) imposed new limits on the ability of California employers to voluntarily provide worksite access to immigration authorities; (2) imposed new notice and posting requirements on employers, and (3) enacted significant statutory penalties.

The first of the new posting/notice requirements is implicated when immigration agencies provide notice of an intent to inspect I-9 forms or other employment records.  Under that circumstance, new Labor Code section 90.2 requires employers that receive a Notice of Inspection of I-9 records or other employment records by an immigration agency to post notice of this impending inspection.  This notice must be posted within 72 hours of receiving notice of the inspection in the language the employer normally uses to communicate employment-related information to employees.  This notice must also include: (1) the name of the immigration agency conducting the inspection; (2) the date the employer received notice; (3) the nature of the inspection, if known; and (4) a copy of the Notice of Inspection of I-9 Employment Eligibility Verification Forms for the inspection to be conducted.

Fortunately perhaps, AB 450 directed the Division of Labor Standards Enforcement (DLSE) to develop and publish on its website a template posting that employers may use to satisfy this pre-inspection notice of a forthcoming inspection by a federal immigration agency of I-9 forms or other employment records.  The DLSE has now published this sample template on its website at: http://www.dir.ca.gov/DLSE/LC_90.2_EE_Notice.pdf.  Employers are permitted to use this DLSE-provided template or to develop their own version provided it contains all the statutorily-required information.

As a reminder, AB 450 also imposes post-inspection notice obligations upon an employer after it receives the results from this records inspection.  Specifically, within 72 hours of receiving notice regarding the results of the records inspection, the employer must provide to each current “affected employee,” and to their “authorized representative,” a copy of the written immigration agency notice that provides the results of the inspection of I-9 Employment Eligibility Verification forms or other employment records.  This notice shall relate to the affected employee only and must be hand-delivered at the workplace if possible, and if not, by mail and email, if the employer knows the employee’s email address, and to the employee’s authorized representative. This notice must contain the following information: (1) a description of all deficiencies or other items identified in the written immigration inspection results notice related to the affected employee; (2) the time period for correcting any potential deficiencies identified; (3) the date/time of any meetings with the employer to correct the deficiencies; and (4) the employee’s right to be represented during this meeting.

Unfortunately, the DLSE was not tasked with developing a template regarding these post-inspection notices of results, and it is presently unclear whether it will do so.

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