Veteran employment attorney Curt Surls comments on dispute involving AB 450 in California

AB 450 prohibits employers from granting access to non-public areas of a business to immigration enforcement officials without a judicial warrant.
By: The Law Office of Curt Surls, California
 
 
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MANHATTAN BEACH, Calif. - Nov. 4, 2018 - PRLog -- California's AB 450, which went into effect at the beginning of 2018, prohibits employers in California from taking certain actions in an effort to ameliorate the Trump Administration's immigration enforcement at the workplace.

AB 450 prohibits employers from granting access to non-public areas of a business to immigration enforcement officials without a judicial warrant.  It also prohibits employers from providing immigration enforcement officials with employee's employment records without a judicial warrant, except for I-9 audits.  Employers must also notify employees of any I-9 audits within 72 hours of receipt of notice of inspection and also notify any affected workers of any findings by ICE that specifies that the employee has immigration status issues. Lastly, employers may not reverify I-9s unless required by federal law.

In a lawsuit challenging several California statutes, the Eastern District of California ruled on United States' motion for preliminary injunction on AB 450 in July of 2018.  With respect to provisions of the bill prohibiting employers from voluntarily consenting to grant access to immigration enforcement officials, the court ruled that AB 450 was not preempted by federal immigration law, but still superseded by the Supremacy Clause due to intergovernmental immunity doctrine.  "Even though these two subsections of AB 450 interfere with immigration enforcement's historical practices, the Court hesitates to find the statutes preempted. In preemption analysis, the Court presumes 'the historic police powers of the States' are not superseded 'unless that was the clear and manifest purpose of Congress.'" (internal quotation marks omitted).  The court went on to explain that ultimately, however, "the Court need not resolve the preemption issue because Plaintiff is likely to succeed on its Supremacy Clause claim under the intergovernmental immunity doctrine. The doctrine applies in these circumstances even though the laws regulate employers and not the Federal Government directly."  Thus, the court found "that a law which imposes monetary penalties on an employer solely because that employer voluntarily consents to federal immigration enforcement's entry into nonpublic areas of their place of business or access to their employment records impermissibly discriminates against those who choose to deal with the Federal Government."

The court, however, did not find that the notice provisions of AB 450 to be preempted or superseded by federal law.  Unlike the prohibition against voluntary cooperation, nothing in the notice provisions would prohibit employer from cooperating or working with the federal government.  The ban on re-verification, however, was enjoined as it appeared to obstruct the purpose of federal immigration law.

Although these are the district court's rulings on preliminary injunction, it should be a good indication on how the court intends to rule on the permanent injunction.  The case is likely to continue on appeal, however, thus it may be sometime until the dust finally settles on AB 450.  The district court case in the Eastern District of California is United States v. California, 2:18-cv-490-JAM-KJN.

About Curt Surls, Esq.

Curtis Surls is an Attorney in the areas of Employment Discrimination, Sexual Harassment, and Wrongful Termination. Located in Manhattan Beach, California, the Law Office of Curt Surls offers a complete range of employment law services to those living throughout Southern California, including all of Los Angeles, Riverside, Orange and San Bernardino counties.

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