California to Employers: ICE Needs a Warrant to Enter

California officials are advising employers and employees to block Immigration and Customs Enforcement inspectors from accessing worker records without a warrant, in order to comply with a new state law.

The law forbids employers from giving “voluntary consent” to allow ICE agents to enter nonpublic areas of a workplace or access employment records. ICE agents must have a warrant, or must make a formal request for I-9 eligibility verification forms, to access workplaces and records.

In an advisory to employers and answers to frequently asked questions issued Feb. 13, Attorney General Xavier Becerra (D) and Assemblyman David Chu (D) said they’re trying to help employers and employees understand the state Immigration Worker Protection Act, which took effect Jan. 1.

Becerra said it’s unclear if recent ICE inspections at 77 businesses around Northern California resulted in violations of the new law. The AG’s office is depending on people to report ICE activity in the state , he said.

“We’re in learning mode,” Becerra said.

Immigration and Customs Enforcement’s field office in San Francisco didn’t immediately reply to a request for comment Feb. 13.

Unlawful Entry

The AG’s office, California Labor Commissioner Julie Su, and other state officials are focused on educating employers and employees to prevent unlawful entry into workplaces, Becerra said. They’re working with groups such as the Society for Human Resource Management, the National Federation of Independent Businesses, and labor unions to spread the word.

The Trump administration’s stepped-up immigration enforcement is intimidating workers and employers, Chu said.

“These raids can crush business,” he said. “We don’t think employers should be aiding and abetting unconstitutional searches.”

Voluntary Consent

An employer’s consent for immigration officials would be considered voluntary if it isn’t “the result of duress or coercion, either express or implied,” the AG’s guidance says. Examples of voluntary consent include freely telling immigration agents where to find records, turning on a computer, or opening file cabinets for agents.

Employers that give voluntary consent to agents without a warrant or formal request for information face civil penalties of $2,000 to $10,000 a day.

The guidance reminds employers that they must give employees written notice if immigration agents want to see their I-9 forms or other records, and provide the results of such inspections.

The state law works in concert with federal law and the rights of employers and employees under both the state and federal constitutions, Becerra said.

“There is no conflict between what A.B. 450 requires and what federal law requires,” he said.