What to do if ICE comes to your worksite

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The San Francisco Chronicle reported Tuesday that Immigration and Customs Enforcement officials plan a major sweep in Northern California. The article, which cited an unnamed source familiar with the operation, said the raids could occur in the coming weeks and would aim to arrest more than 1,500 undocumented immigrants.

As a California employer, you must know that just because an ICE officer visits your workplace, that does not mean that the agent has permission to talk to your employees or walk the premises without a proper warrant.  In fact, you must prevent this from happening! 

Also, ICE agents are not allowed to simply get documents without complying with notice obligations.  While perhaps not the most pleasant encounter, you and your employees don’t need to be combative or aggressive in order to prevent ICE from entering your workplace. You just need to be prepared and follow your procedure.  

As mentioned in this blog before, this year the Immigrant Worker Protection Act (AB 450) provides California workers with protection from immigration enforcement while on the job.  The new rules apply to all employers, regardless of size.

Employers must comply with strict rules limiting when ICE can be given access to the worksite or employee records. Employers must also comply with new notice obligations.

California employers cannot voluntarily allow ICE to enter nonpublic work areas or to access company records. Instead, ICE must present legal documentation in the form of a judicial warrant or subpoena before you can allow access. This is a warrant or subpoena issued by a court, not just a document issued by ICE itself.

If the ICE agent presents an ICE Notice of Inspection, ICE does not have the authority to simply enter the premises.  Rather, this Notice provides notice to the employer and a three-day response window to produce the Forms I-9 and other documents such as payroll records, list of current employees, articles of incorporation and business licenses.

Employers must follow specific requirements related to Form I-9 inspections. Within 72 hours of receiving a Notice of Inspection, California employers must post a notice to all current employees informing them of any federal immigration agency’s inspections of Forms I-9 or other employment records.

After the inspection concludes, employers have 72 hours to provide each “affected employee” a copy of the results and a written notice of the employer’s and employee’s obligations arising from the inspection. An “affected employee” is one identified by the inspection results as potentially lacking work authorization or having document deficiencies.

California employers must ensure that supervisors and any employees who may interact with ICE agents know the rules.  These employees must make sure that ICE agents are not simply voluntarily granted access without particular documentation –the judicial warrant or subpoena — in place.  You may want to train your public facing staff on their responsibilities and have a prompt response system in place. At a minimum, these individuals should be trained to ask for a judicial warrant or subpoena. (And not assume that any document is valid – even one with an ICE insignia. It must be a judicial warrant or subpoena).

In addition to the emotional havoc these ICE encounters have on your staff and the potential life-changing consequences if documentation is not deemed satisfactory, the penalties to California employers for violating the new state law can be up to $10,000 per violation. At the same time, federal penalties for Form I-9 violations can range from a $110 to $20,000.

Leaves of Absence – Updated Chart

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Happy New Year!  I updated my LOA Chart Jan 2018 PDF.  If you have a more clever way of saying something, or think this chart could be “better” – let me know!

New Laws, Part 4! (or really, some questions, answered).

You had questions, and now I have answers!

I gave a presentation today and the audience had some great questions that I couldn’t answer at the time. I thought I would share my answers about the Form I-9, the new salary history rule, and the new “Ban the Box” rule here:

How can an employer check the work authorization / complete the Form I-9s of remote employees?

The employer has a variety of options when dealing with remote employees – the company can designate an authorized representative to fill out Forms I-9 on behalf of your company, including personnel officers, foremen, agents or notary public. Except, as pointed out by my friend Nancy Nelson, below, if the remote employees are in California, then the company can only use a notary public who is a properly bonded immigration consultant – even if acting in a non-notary capacity.

The Department of Homeland Security does not require the authorized representative to have specific agreements or other documentation for Form I-9 purposes. Of course, if your authorized representative fills out Form I-9 on your behalf, you are still liable for any violations in connection with the form or the verification process.

The key is that you have someone who can physically examine each document presented and determine if it reasonably appears to be genuine and relates to the employee presenting it. Reviewing or examining documents via webcam (such as Skype, etc.) is not permissible.

If the employee is outside California, you can use a notary. The notaryshould just act as an authorized representative, not as a notary. This means you are using a notary, because you know that the notary understands the importance of looking at the physical documents and filling out the Form I-9 accurately and completely, but the notary public should not provide a notary seal on Form I-9.

The company using the authorized representative needs to pay any fees for those services. Don’t pass them on to the employee!

Special thanks to Nancy Nelson for pointing this out!

How should a company maintain its completed Form I-9s?

I like the old school method where an employer  keeps all the current employees’ Form I-9s in a binder and in a separate binder, the employer keeps those of former employees.   I like all the documents in one place and the ability to simply pull it out of a safe file cabinet when needed. But. . . you have other options!

Homeland Security allows for three methods of maintaining the records: paper, microfilm/ microfiche or electronic copy. DHS’ website explains the requirements for using each of these formats here.

Before selecting a method, keep in mind that Form I-9s contain a lot of personal information about employees, so you’ll want to maintain that information in a private, confidential place that cannot be accessed by anyone without a “need to know.”

No matter how you choose to store your Form I-9, you must be able to present them to government officials for inspection within 3 business days of the date when the request was properly and legally made.

What employers are exempt from the new “Ban the Box” law?

If your company has historically operated under an exception to the existing restrictions on questions about an applicant’s criminal history, you likely remain under an exception. As a threshold matter, only employers with 5 or more employees are covered by the new “Ban the Box” rules.

Also, the law states that it does not apply in any of the following circumstances:

  • a position for which a state or local agency is otherwise required by law to conduct a conviction history background check.
  • a position with a criminal justice agency
  • a position as a Farm Labor Contractor
  • a position where an employer or agent thereof is required by any state, federal, or local law to conduct criminal background checks for employment purposes or to restrict employment based on criminal history.

Can employers ask applicants, “What is your salary expectation if you work here?” in light of the new Salary History rules?

Yes – so long as you don’t ask that in context with what the person’s salary history is. Don’t try to be too clever and ask this in a way that is really asking about salary history!

Can current employees ask for the pay scale for a position, like applicants now can?

Well, a current employee can ask – it cannot be against the rules or policies of the employer to ask! –but the employer isn’t required by law to provide the information.

 

New Laws ’18, part 3!?!

In our ongoing series of new laws for California employers, here’s a brief summary of some more . .

Salary History

A new law for 2018 is the addition of Labor Code §432.3, which bars employers from relying upon an applicant’s salary history as a factor in determining whether to offer to hire the person, or what compensation to offer.  Employers cannot ask, verbally or in writing, personally or through an agent/recruiter, about salary history.

If the applicant volunteers the information without prompting, the employer could consider it.  (But I suggest you make it clear you don’t want such volunteered information as you don’t want a dispute about whether the person felt pressured to volunteer by the company, or an agent).  Also, if the information is publicly available, the employer can consider it.

The law also incorporates the 2017 amendments to the Equal Pay Act to confirm that salary history, by itself, cannot justify any disparity in compensation based on race, gender, or national origin.

Finally, if an applicant makes a reasonable request for the employer’s pay scale, the employer must provide it.

Employers will want to review their employment applications to remove any request for information about salary history (and information about criminal history per the new “ban the box” rules).

Additions to the Harassment Prevention Training Requirements

Government Code §12950.1 is amended to provide that Harassment Prevention trainings, required for companies with more than 50 employees, include training on the prevention of harassment on the basis of gender identity, gender expression and sexual orientation.   (Not to #humblebrag, but my trainings already incorporated this).

And a Reminder of Required Minimum Wage Increases  

On January 1, 2018, the minimum wage for employers with 26 or more employees will increase to $11.00 per hour. The minimum annual salary for an exempt employee at a “larger” employer will increase to $45,760.

For smaller employers (25 or fewer employees), the minimum wage will increase to $10.50, and the minimum salary for an exempt employee will be $43,680.

The Computer Software Professional minimum wage will increase to $43.58 (or $7,565.85 per month; $90,790.07 per year).  Don’t forget, this is a very specific exemption that requires strict compliance with the defined duties.  And. . . it is only an exemption from overtime; these employees must still be provided meal and rest breaks.

This blog is not intended to be an exhaustive list of all new laws, but rather is to highlight some of the new changes. 

New Laws ’18, part 2!

Two very significant new laws were signed by Governor Brown last week.  Here’s a quick summary.

Parental Leave for Employees of “Smaller” Employers

Last week, Governor Brown signed SB 63, the New Parent Leave Act.

The new law requires employers that have between 20 to 49 employees within 75 miles to hold eligible workers’ jobs when they take up to 12 weeks of parental leave.

The new law amends the California Family Rights Act (CFRA) to provide this protected time off. The new law will likely alleviate some of the confusion created by the (poorly) named Paid Family Leave program. That law provides wage replacement when an employee took family leave, but didn’t actually provide the protected time off. This created a lot of misunderstanding about who was entitled to take time off.

Ban the Box

AB 1008 was also signed by Governor Brown last week.

This law will make it an unlawful employment practice under for an employer with 5 or more employees to include on employment applications any question that seeks the disclosure of an applicant’s conviction history or to inquire into or consider the conviction history of an applicant until that applicant has received a conditional offer. The new law also prohibits employers from considering or distributing information about an applicant’s prior arrests, diversions, and convictions. If an employer intends to deny an applicant solely or in part because of conviction history, the employer must make an individualized assessment as to how the conviction has a direct and adverse relationship with the specific duties of the job, among other things. Notice to the applicant is required and the applicant must be given an opportunity to explain or dispute the accuracy of the information. There are, of course, exceptions to this rule – but don’t assume they will apply to your workplace!

Countdown to New Laws ’18! – Protections Against ICE Workplace Raids

On October 5, 2017, Governor Brown signed AB 450 into law. The law prohibits employers from allowing federal immigration agents on private business property without a judicial warrant.

If ICE shows up at your business, do not permit them access to non-public areas without a warrant.

The new law also requires business owners to give their employees public notice — within 72 hours — of federal immigration inspections of employee records. A template created by the Labor Commissioner can be used for the notice.

AB 450 also:

  • Requires an employer to provide affected employees (meaning employees who may lack work authorization or whose documents have deficiencies) a copy of the Notice of Inspection of I-9 Employment Eligibility Verification forms, upon reasonable request.
  • Requires employers to provide to affected current employees, and to an employee’s authorized representative, a copy of the immigration agency notice that provides for the inspection results and written notice of the obligations of the employer and the affected employee arising from the action.
  • Prohibits an employer from re-verifying the employment eligibility of a current employee at a time or in a manner not required by federal law.
  • Prescribes penalties for violations of the provisions of the new law from $2,000 – $10,000.

And in case you didn’t know. .. a new-NEW!- Form I 9 is now in effect (even newer than the one I wrote about in January).  You can pull it up here.

Summer Webinar Fun! Unlimited PTO: What Employers Need to Know

“Unlimited” means “No Limits”, Right?

On July 20, 2017, I will be participating in a webinar that will take a deeper dive into popular “Unlimited Time Off” programs.  Many employers have implemented these programs as a perk for employees and to avoid the hassle of tracking time off and the reasons for it.  But “unlimited” can mean “unlimited” and that can get companies into trouble.

I will talk about non-accrual time off programs, including their risks and rewards, and how to implement and manage them; we’ll also talk about how to go back to the accrual method.  And how this all works within the various state and local paid sick leave requirements.  The learning objectives include:

  1. Reviewing the general rules governing time off in California for vacation and sick leave
  2. Implementing a non-accrual time off program for new and existing businesses, including recommended policy language
  3. Managing a non-accrual time off program
  4. Converting from a non-accrual to an accrual program

If you offer unlimited PTO or are thinking about it, this is a must attend webcast.  Register today!

Here is the registration information:

Title of webcast: Unlimited PTO: What Employers Need to Know

Date 7/20/17  10-11 AM

Registration URL –

https://event.on24.com/wcc/r/1449235/F6935618891E2B057D0616AEADD3DE11

Pending approval for 1 general continuing education credit from HRCI.