Category Archives: Uncategorized

What to do if ICE comes to your worksite


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


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 ’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 –

Pending approval for 1 general continuing education credit from HRCI.

Celebrities, They’re Just Like Us!

Well, they’re just like a lot of employers who don’t realize or admit that they are employers.

Mary-Kate and Ashley Olsen were ordered to pay $140,000 to former interns who claimed they were not paid wages for work performed.  The case was in Manhattan, but the basics are the same here in California: if someone performs work for you / your company, the default is that they should be paid at least minimum wage (and overtime, and get breaks). Only after a detailed legal analysis should you move to anything other than “pay for time worked.” The “honor” of learning at your feet does not pay for the basics of daily living! Here’s a short article on the claim.

Be careful!  “Pay now or pay later” is really “pay the basics now or pay a ton in wages, penalties and attorneys’ fees later.”

New Form I-9’s!

Mark your calendars! As you know, all employers must use a Form I-9 to verify the identity and employment authorization of individuals hired for employment.

The new Form I-9 is now available for use and employers must use this new version as of January 22, 2017. This means that for anyone hired on or after January 22, 2017, you must use the new form.  You should not require current employees to re-verify (unless there is a legally required reason to do so).

Go through your “new hire packets.”  All blank versions of the older Form I-9 should be destroyed – and any links on computers changed.

The new form is an example of “more, not less” – more pages! More instructions! The person at your company tasked with the power (okay, the responsibility) of completing the form should pour a nice cup of coffee and read them through – there are some subtle, but important, changes.

For example, in a move to protect privacy, individuals will only need to provide other last names used (if any) – not former first names.

Subtler changes are that Section 1 now asks foreign national employees to provide either their Form I-94 number or foreign passport information, not both. And Section 2 has been enlarged with space to enter information that used to be squeezed into the margins – such as Temporary Protected Status extensions, Optional Practical Training for STEM student extensions, H-1B portability, etc.

And. . .keep in mind that here in California, protections for employees are stronger than other states.  It is unlawful for an employer to request different or additional documents than are required for the Form I-9, to refuse to honor documents that appear genuine on their face, to refuse to honor documents or work authorization based upon the specific status or term of that work authorization, and to attempt to re-investigate or re-verify an incumbent employee’s authorization to work using one of the above methods.

Good luck!