ICE Raids, Audits and Inspections: Management Should Carefully (!) Review Its Rights and Obligations

Employers remain targeted in the nationwide immigration debate.   Forty years after Congress declared that employers would not be “gatekeepers” – adopting an I-9 process requiring only that documents appear valid to be accepted – federal authorities have yet to create any reliable employment authorization verification system.  The confusion this creates, following decades of inconsistent federal policy and enforcement, leads many employers to seek some reliable guidance given recent increases in ICE raids, immigration audits, and federal prosecutions.

Review Advice Carefully

When weighing advice and options, however, management must carefully balance its own and employees’ rights against authorities’ ability to inspect workplaces.  This is even more important when searching many resources now available online.  Much of this advice is sound, including some printed information sheets employers can provide to employees.  But other advice is not safe or appropriate: for example, one site suggests that employers “train all workers to NOT interact with ICE agents” and that workers “should say nothing [or] ‘talk to my employer’” if questioned.   That is bad advice, as prohibiting individuals from interacting with authorities – or reporting potential legal violations – is a quick route to retaliation claims or even a federal obstruction prosecution.

We recommend that employers adopt a policy addressing all access by law enforcement or government officials (whether immigration, safety, or labor-related). The policy should cover several important factors:

• Stating that no law enforcement representative or other government official is entitled to enter any portion of the premises not generally accessible to the public (such as public parking lots, lobbies, sidewalks and reception areas) without a court-issued (not an 'administrative') warrant. 

• Noting that no law enforcement or other government official is entitled to view documents or other information not already accessible to the public without a court-issued warrant. 

• Directing employees confronted by law enforcement or other government officials without a court-issued warrant to note that they are not authorized to permit access to non-public areas or to provide any non-public information without express permission from specific management representatives.

• Reminding employees that they should never physically interfere with a law enforcement representative or other government official and should always comply with any court-issued warrant presented to them for access to the premises or information. 

• Affirming that the policy does not prohibit employees from discussing wages or other terms and conditions of employment with any person, including government representatives.  

A past presentation covering government access to the workplace can be viewed by clicking here.

California Limits Access and Requires Notice to Employees Before Inspections

California employers should also be familiar with the state Immigrant Worker Protection Act, which prohibits businesses from allowing federal immigration agents to enter non-public areas without a warrant.  Under the law, employers may not allow access to employment records, including I-9 forms, unless ICE has issued a Notice of Inspection (which provides at least 72 hours’ notice before ICE can demand access to records).  While these "access" restrictions have been challenged by the federal government, the law also imposes "informational" requirements that:

• Once a Notice of Inspection is received, the employer must post a notice to all current employees informing when the inspection will occur and the agency demanding the inspection.  This notice must be in any language usually used to communicate with each employee, posted within 72 hours of receiving the Notice of Inspection, and allow employees to receive a copy of the federal notice.  It must also be provided to any union representing employees.  A model notice is published by the Department of Industrial Relations here. 

• If the employer receives notice of any irregularities after the inspection, it must give a copy of relevant parts of the results to each affected employee (and their union, if any) within 72 hours.  The employer must also notify the employee of any meetings scheduled to resolve the issues.

Failure to comply with any part of the law can result in up to a $5,000 fine for the first and a $10,000 fine for subsequent violations. 

Train and Be Prepared!

The current environment creates serious problems for employers.  First, like other law enforcement, ICE officials can be intimidating.  Employees are likely to face pressure to allow immediate access to records or non-public areas, and even threats that interfering with ICE can be a federal crime.  This is especially troubling for industries with seasonal employment, such as agriculture or ski resorts, who regularly employ a high percentage of seasonal migrant labor frequently targeted by ICE.  Training employees to be prepared for ICE visits is essential to avoid violating the new California law under pressure from federal agents.  Second, employers must now navigate competing state and federal requirements – such as whether to reverify an employee upon learning that documents could be falsified, or after receiving benefits or Social Security Number no-match results – each of which carries significant penalties.

California employers are likely to remain caught between state law and aggressive federal immigration policies for the near future.  Knowing each set of requirements, and preparing/training for ICE inspections, remains the most effective way to navigate them.

New Guidance (and Approval) for 6-Hour Meal Break Waivers

California employers often face individual and class-action claims for failure to provide uninterrupted 30-minute meal periods to non-exempt employees.  Failure to provide meal periods results in a one-hour wage penalty per day and can be based on several different issues such as not providing a break, not providing it at the required time, providing shorter breaks than are required, and allowing interruptions – or even the possibility of an interruption – during the break.

The problem is even worse under recent state Supreme Court authority holding that, if time records do not show a proper meal break for an employee working at least five hours, the employer is presumed to be liable even if an employee chose not to take the break.

There is one employer-friendly rule: when employees work more than five hours, but not more than six, the meal period “may be waived by mutual consent of the employer and the employee.” This is incredibly important for many employers, especially those in industries with five to six-hour shifts. 

Employers with comprehensive onboarding materials frequently include a written waiver as part of their hire package, and attorneys often use these to dramatically reduce potential meal-period penalty claims - everywhere from individual Labor Commissioner claims to class-action and PAGA litigation.

Unfortunately, the relevant legal language has not been as to whether waivers may be made in advance, whether they may be in writing, and how they can be revoked. 

This week, one California appellate court upheld the validity of advance written meal periods waivers for employees working six hours or less in a single workday.  Rejecting arguments that advance waivers are prohibited, the court allowed them “in the absence of any evidence the waivers are unconscionable or unduly coercive.”  The case, La Kimba Bradsbery v. Vicar Operating, can be viewed here. 

Vicar Operating and other cases suggest a few points that could help ensure the validity of written meal break waivers, such as:

• The waivers do not apply to shifts longer than six hours: if employees do not always clock out at exactly six hours or less (even by a few minutes), employers may need to schedule shifts for something less than six full hours.

  
  

• The waivers ought to be in a separate written document rather than contained in a larger handbook or acknowledgment form.

• There should be language verifying that the waiver is voluntary and that refusal to sign it will not result in retaliation.

  
  

• Waiver should be revocable at any time.

  
  

• Materials should be provided to employees in a language they readily understand.

A draft format of a written waiver we developed (for demonstration purposes only) can be viewed here.   

This is only one appellate case that could be contradicted by other appellate courts or changed by the Supreme Court.  For now, however, employers can take satisfaction in a well-reasoned case approving the written waivers long used throughout the state.

Handbook Changes Happen (Again) in California

Employment law changes come about in several ways: new laws, significant new court cases, new regulations, and even new enforcement policies by agencies such as the National Labor Relations Board (“NLRB”) or the California Division of Labor Standards Enforcement (“Labor Commissioner”).

Changes do not always require updates to employee handbooks. But they usually do.  And with one of the most active legislatures in history, California provides some of the nation’s most rapidly changing employment-law landscapes.

The problem is magnified by the fact that, whenever any Fair Employment and Housing Act (“FEHA”) category changes, employment policies must change as well. State regulation requires employers to distribute a “harassment, discrimination, and retaliation prevention policy” to all employees (in all languages spoken by ten percent or more of the workforce) including “all current protected categories covered under the Act.”  (See the regulation here.)

This year is no exception.  Several employment-law changes require handbook revisions for just about every employer, of any size.  Some of the changes include: 

Additions to the Fair Employment & Housing Act (“FEHA”).    This year, there were multiple changes to FEHA-protected categories such as removing ‘historically’ from traits associated with race and inclusion of victims of qualifying acts of violence, as well as expansion of all categories to include “intersectionality” (any combination of multiple traits). 

Paid Family Leave Benefits.  Policies must not require employees to use vacation or sick leave prior to obtaining benefits under the state Paid Family Leave program.

Leaves of Absence.  Prior Crime and Abuse Victim Leave has been amended to cover Victims of Qualifying Acts of Violence and moved to the FEHA (unlike leaves for Victims of Violent Felony, Serious Felony, or Felony Theft).

Paid Sick Leave.  Sick leave may be used by agricultural workers for certain smoke, heat or flooding emergencies and by individuals who are victims, or whose family members are victims, of certain crimes.

Different rules apply to employers of different sizes.  There also are many other requirements that may not appear in handbooks but require active policy preparation, such as Workplace Violence Prevention programs (discussed previously in the blog here).

In today’s environment, employee handbooks and policies should be reviewed every year.  Employers can keep an eye on changes via their own industry associations or, better, groups focusing on California law and state-compliant policies.  Handbooks and policy manuals are front-and-center in almost every type of employment litigation (especially class and PAGA suits), so monitoring continued compliance is essential.