TranslateProtect Your Business – Workforce Compliance Resources
Employer Resources for Navigating the Current Workforce Regulatory and Enforcement Landscape
This resource is informational only and has been pared down to provide some basic legal considerations and awareness of best practices. This resource does not constitute legal advice. If you have remaining questions, please consult your attorney.
Workforce Documentation Requirements & Resources
Ensure your business is compliant with employee hiring requirements by gathering and maintaining required documentation for all employees. Keep payroll, tax, and employee information, including I-9 forms and identity verification records, which may be needed for tax or immigration inquiries. Federal law requires employers to verify eligibility to work and sets forth a process by which federal representatives are authorized to inspect I-9 information. Federal law also may require employers to submit documentation supporting tax filings, which may be requested for verification. Keeping proper records in a secure location will assist in maintaining proof of legal compliance.
CALIFORNIA LAW GIVES RIGHTS TO EMPLOYEES IN FEDERAL IMMIGRATION INQUIRIES
While the federal government has the right to inspect certain employment and immigration related documents, a proper process must be followed for access.
AB 450 Immigrant Worker Protection Act
AB 450 provides immigrant workers with secured workplace protections regardless of whether they work in the public or private sector. Employers must prevent warrantless access to non-public worksites and to employee’s sensitive data, including when such information is requested by Immigration and Customs Enforcement (ICE). Employers who violate these protections are subject to civil penalties.
Form I-9 Inspections/Audits
While the federal government has a right to conduct I-9 inspections/audits, and employers have an obligation to comply, certain procedural rules govern the I-9 inspection process.
- Employers must comply with a properly noticed Form I-9 inspection/audit.
- The Form I-9 inspection must be noticed at least three business days ahead of the inspection date, generally done by a Notice of Inspection form.
- Employers must notify all current employees of the impending inspection, and the result of the inspection must be given to all employees identified by the inspection as potentially lacking work authorization or having deficiencies in their I-9.
- Best practices for being prepared for I-9 investigations include:
- Make sure I-9 verification, storage, and destruction are being handled meticulously at all sites.
- Internally audit I-9s to find and fix patterns of errors – do not use white out or correction fluid on forms
- Prepare an immigration component to your business legal compliance policy
CALIFORNIA LAW REQUIRES EMPLOYERS TO PROVIDE INFORMATION TO EMPLOYEES REGARDING I-9 INVESTIGATIONS. EMPLOYERS MUST:
Notify the Employees & the Union
Under California law, employers must provide notice of any I-9 Employment Eligibility Verification Inspection to employees and their union representative, by posting a notice within 72 hours of the employer receiving notice of the inspection and in the language the employer normally uses to communicate employment related information. The employer notice must include a copy of the Notice of Inspection.
Provide Information to Employees
Employers must provide a copy of the I-9 Inspection Notice, upon employee request, to any identified employee who may lack work authorization or who may have deficiencies in their I-9 and must also provide a copy of the inspection results to those employees and their union representative within 72 hours of receiving the notice of results.
RESPONDING TO FEDERAL REQUESTS FOR WORK STATUS INFORMATION WITHOUT PROPER I-9 AUDIT NOTIFICATION (UNANNOUNCED IMMIGRATION ENFORCEMENT ACTIVITIES)
As explained above, employers have a duty under California law not to allow access to non-public areas or private employee information without proper procedural requirements being met. If immigration officials seek access to employees, employee records, or employee work spaces outside of the context of a properly noticed I-9 investigation, employers have legal obligations to protect their employees:
- Ask for a Warrant: Employers and their representatives are prohibited from voluntarily allowing immigration agents to enter the private areas of the workplace without a judicial warrant. “ICE warrants” are NOT judicial warrants. ICE must present a warrant signed by a judge in order to receive access to non-public work areas.
- Protect Private Documents: Employers and their representatives are prohibited from voluntarily allowing immigration agents to access, review, or obtain employee records, without a subpoena or judicial warrant. If an employer has not received a proper I-9 inspection notice, ICE may not be allowed to inspect employee records without a judge-signed warrant.
- Check on Verification: Employers and their representatives are prohibited from re-verifying the employment eligibility of a current employee at a time or in a manner not required by Section 1324a(b) of Title 8 of the United States Code.
If ICE agents come to a workplace, they may attempt to question employees and/or detain individuals suspected of being undocumented. While employers must comply with a proper judicial warrant, both employers and employees have a right to remain silent under attempted questioning by immigration officials.
ADDITIONAL EMPLOYER CONSIDERATIONS
Social Security number “No Match” letters
Employers may receive a “no-match” letter from the Social Security Administration. The no-match letter suggests that employers:
- Follow instructions on the printed letter – receiving a letter is not a statement about employee immigration
- Review the employee’s name and Social Security Number (SSN) information that was submitted on the Form W-2
- Provide any necessary corrections on the Form W2-C within 60 days of receiving the no-match
- Do not fire or take any adverse action against any employees as that could be a violation of federal law
If any questions regarding immigration enforcement compliance arise, employers and employees are encouraged to seek legal counsel.