New California Law Requires Employers to Give 72 Hours’ Notice to Employees of an Immigration Agency Audit

California’s new Immigrant Worker Protection Act applies broadly to all private and public employers and responds, in part, to this dramatic rise in inspections by creating new employer notice obligations regarding these inspections and penalties ranging from $2,000 to $10,000 for employers who fail to comply.

Employer’s Notice Requirements Before the Inspection

In particular, the IWPA provides that, when an employer receives notice that an immigration agency intends to audit its employment forms and records including, but not limited to, I-9 Employment Eligibility documents, it must provide notice to each affected employee of the impending audit within 72 hours of the agency’s notice. The employer’s notice must be written in the language normally used to communicate employment-related information to the particular employee and, if applicable, must also be sent to the employee’s authorized representative (i.e., a union). The notice must include the following information:

• The name of the immigration agency conducting the inspections of I-9 Employment Eligibility Verification forms or other employment records;
• The date that the employer received notice of the inspection;
• The nature of the inspection to the extent known; and
• A copy of the Notice of Inspection of I-9 Employment Eligibility Verification forms for the inspection to be conducted.

The California Labor Commissioner has also developed a template for the required notice to employees that is available to employers online here.

Employer’s Requirements After the Inspection

The IWPA provides that, after the immigration agency concludes its audit of the pertinent employment forms, it transmits the results to the particular employer, along with notice of any corrective action expected. The IWPA also requires the employer to deliver the results to the affected employee (and, if applicable, his or her representative) within 72 hours by hand at the workplace. If hand delivery to the employee is not possible, the information may also be sent to them by either email or first class mail. The notice of the audit results must contain the following information:

• A description of all deficiencies or other items identified in the written immigration inspection results related to the affected employee;
• The time period for correcting any potential deficiencies;
• The time and date of any meeting with the employer to correct any identified deficiencies; and

Notice that the employee has the right to representation during any meeting scheduled with the employer.

Fines and Penalties

If an employer fails to provide the required audit notices to affected employees within 72 hours of notification by the immigration agency, or fails to provide copies of the requested audit results, fines ranging from $2,000 to $5,000 may be assessed for a first-time violation. Subsequent violations may result in fines ranging from $5,000 to $10,000, however, exceptions may be made if the federal government directly requested the employer to withhold notice.

Practical Tips

Because the 72 hour notice requirement begins the moment the employer receives notification from the immigration agency, employers should have either their own notice or the template provided by the Labor Commissioner ready to be posted and/or directly given to the affected employees. If the employer's choice of notice is in English, copies should be readily available in all additional languages regularly used to relate employment information within the company. The contact information of any authorized representative of the employees should also be kept current. Taking these small steps, being aware, and having notice documents prepared in appropriate languages in the event of an immigration inspection audit, may well save employers thousands of dollars in potential fines and penalties.

Christine Chong, a Law Clerk in San Francisco, co-authored this alert.