United States of America v. State of California et al

Filing 171

REPLY by United States of America to RESPONSE to 2 Motion for Preliminary Injunction. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S, # 20 Exhibit T, # 21 Exhibit U, # 22 Exhibit V, # 23 Exhibit W, # 24 Exhibit X, # 25 Exhibit Y)(Reuveni, Erez)

EXHIBIT J

SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2017-2018 Regular Session
AB 450 (Chiu)
Version: June 21, 2017
Hearing Date: July 11, 2017
Fiscal: Yes
Urgency: No
TSG

SUBJECT
Employment regulation: immigration worksite enforcement actions
DESCRIPTION
This bill would enact a set of restrictions on California employers to ensure that the
assistance they give to federal immigration enforcement activity in the workplace goes
no further than what is required by law and that workers have sufficient notice and
opportunity to correct any inaccuracies in their employment eligibility records before
employers take adverse action against them in connection with immigration
enforcement audits.
BACKGROUND
It is estimated that more than 2.6 million undocumented immigrants reside in
California. They make up a large fraction of California’s workforce and represent a
significant factor in California’s economy. For example, undocumented workers are
believed to comprise 45 percent of California’s agricultural workforce and to hold 21
percent of construction jobs. Across the board, almost 1 in every 10 workers in
California is undocumented.
An increase in workplace raids and audits of employee work authorization records will
have a dramatic impact on California workers and businesses. Yet such an increase in
workplace immigration enforcement activity is likely and may already have begun
under new immigration enforcement priorities ushered in on the heels of President
Trump’s inauguration. Whereas, previously, federal immigration officers had focused
on detaining serious criminals, the new policies cast a much broader, less discerning
net. 1 All immigrants, including the many who toil daily in California’s low-wage labor
force, now have a target on their backs.

1

Compare Johnson, Policies for the Apprehension, Detention and Removal of Undocumented Immigrants
(Nov. 20, 2014) U.S. Department of Homeland Security <https://www.dhs.gov/sites/default/files/
publications/14_1120_memo_prosecutorial_discretion.pdf> (as of June 18, 2017), with Kelly,
Enforcement of the Immigration Laws to Serve the National Interest (Feb. 20, 2017) U.S. Department of

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As we do in the case of other law enforcement authorities, all Californians – including
undocumented immigrants – enjoy important constitutional and legal protections that
prohibit immigration enforcement officers from trampling on our privacy or inhibiting
our liberty. Fourth Amendment restrictions, for example, prevent immigration officers
from conducting unreasonable searches and seizures, just as they do the police. Outside
of points of entry into the country, everyone generally has the right to refuse to respond
to questions directed at them by immigration officers, with the possible exception of a
request for a name.
These same rights apply in the workplace, though during workplace immigration
enforcement actions in the past, federal immigration officials have shown limited
regard for them.2 Moreover, as a practical matter, since the employer controls the
workspace, the employer can consent to waive some of these rights. Such consent
eviscerates many protections that workers would otherwise have and gives
immigration officers access to people and documents that they would otherwise be
required to leave alone.
Immigration enforcement activity frequently has a secondary effect on workers as well.
Confronted by the prospect of immigration officers interviewing worker or rifling
through personnel records, employers sometimes feel compelled to take unusual steps
to scrutinize those records, subject employees to additional documentation
requirements, or even fire certain employees. For the reasons explained in Comment 6
of this analysis, such steps are generally unnecessary and frequently illegal. The reality
is, however, that employers often undertake such steps nonetheless.
This bill would enact a series of measures designed to combat the problems associated
with immigration enforcement activity in the workplace comprehensively. First, the bill
would prevent California employers from inadvertently undermining the constitutional
and legal rights of their employees by consenting to warrantless searches of non-public
areas or providing access to personnel records without a subpoena.
Second, the bill would create four notification requirements related to immigration
enforcement activity in the workplace. Two of these notices would go from employer to
employee before and after immigration enforcement activity, letting workers know
what is going on and if they need to do anything in response. The remaining two
notices would go to the California Labor Commission, enabling it to track and respond
to workplace immigration enforcement activity in the state and its effect on California
workers.

Homeland Security p.2 < https://www.dhs.gov/sites/default/files/publications/17_0220_S1_Enforcementof-the-Immigration-Laws-to-Serve-the-National-Interest.pdf> (as of June 18, 2017).
2
The author notes, for example, incidents in 2008 when ICE raided the Van Nuys Micro Solutions
Enterprises (MSE) facility. ICE had eight criminal arrest warrants when it raided the plant and detained
800 workers at the facility. In 2007, ICE raided a Michael Bianco, Inc. (MBI) facility in Massachusetts. ICE
had arrest warrants for five individuals when it blocked exits and detained 500 workers.

AB 450 (Chiu)
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Third, the bill would require the Labor Commission provide complainants and
witnesses with certification of their participation in the resolution of a matter pending
before the Labor Commission. This provision is intended to help immigration officials
know when they might be detaining or deporting someone who is critical to the
resolution of a California labor dispute.
Finally, the bill would subject California employers to state fines if they abuse the work
eligibility verification process by re-verifying the eligibility of employees at a time or in
a manner not required by federal law.
This bill passed out of the Senate Committee on Labor and Industrial Relations on a 3 to
1 vote.
CHANGES TO EXISTING LAW
Existing law provides, under federal law, that an immigration officer may not enter into
the non-public areas of a business or a farm or other outdoor agricultural operation for
the purpose of questioning the occupants or employees concerning their right to be or
remain in the United States, unless the officer has either a warrant or the consent of the
owner. If the immigration officer is denied access to conduct a site inspection, a
warrant may be obtained. Existing law further specifies that nothing in this provision
prohibits an immigration officer from entering into any area of a business to which the
general public has access or onto open fields that are not farms or other outdoor
agricultural operations without a warrant or consent. (8 U.S.C. Sec. 1357; 8 C.F.R. Secs.
287.8(f)(2) and (4).)
Existing law requires an employer to verify, through examination of specified
documents, whether or not an individual is authorized to work in the United States. It
specifies that if the document is presented and reasonably appears on its face to be
genuine, then the employer has complied with this requirement and is not required to
solicit or demand any other document. (8 U.S.C. Sec. 1324a(b).)
Existing law makes it an unfair immigration-related employment practice for any
person or entity to do any of the following: (a) discriminate against any individual,
except as provided, with respect to the hiring, recruitment, or referral of the individual
for employment or the discharging of the individual from employment; or (b) request,
with the intent of discriminating against an individual, more or different documents
than are required under law or refuse to honor documents tendered which, on their
face, reasonably appear to be genuine. (8 U.S.C. Sec. 1342a(a)(1)-(6).)
Existing law prohibits an employer or any other person or entity from engaging in, or
directing another person or entity to engage in, an unfair immigration-related practice
against any person for the purpose of retaliating against that person for exercising his or
her rights under state or local labor law. These protected rights include the following:
a) filing a complaint or informing any person of an employer’s or other party’s alleged

AB 450 (Chiu)
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violation of a state or local labor law, so long as the complaint or disclosure is made in
good faith; b) seeking information regarding whether an employer or other party is in
compliance with state or local labor law; and c) informing a person of his or her
potential rights and remedies under state or local labor law, or assisting him or her in
asserting those rights. (Lab. Code Sec. 1019(a).)
Existing law defines “unfair immigration-related practice,” for purposes of state law, to
mean any of the following practices when undertaken for retaliatory purposes, and not
at the direction or request of the federal government: (a) requesting more or different
documents than are required by federal law or refusing to honor required documents
that on their face appear to be genuine; (b) using the federal E-Verify system to check
the employment authorization status of a person at a time or in a manner not required
or authorized by federal law; (c) threatening to file or filing of a false police report,
threatening to file or filing a false report or complaint with any state or federal agency,
or threatening to contact or contacting immigration authorities. (Lab. Code Sec.
1019(b).)
Existing law specifies that engaging in an unfair immigration-related practice against a
person within 90 days of the person’s exercise of a protected right shall raise a
rebuttable presumption of having done so in retaliation for the exercise of those rights.
(Lab. Code Sec. 1019(c).)
Existing law permits an employee or any other person who is subject to an unfair
immigration-related practice, where the unfair practice is retaliatory in nature, to bring
a civil action for equitable relief and any applicable damages or penalties, and specifies
that an employee or other person who prevails shall recover his or her reasonable
attorney’s fees. (Lab. Code Sec. 1019(d)(1).)
Existing law prohibits an employer, in the course of satisfying federal immigration law,
from requesting more or different documents than are required under federal
immigration law; refusing to honor valid documents, as specified; or attempting to
reinvestigate or re-verify an incumbent employee’s authorization to work using an
unfair immigration-related practice. (Lab. Code Sec. 1019.1.)
This bill would prohibit an employer, or a person acting on behalf of an employer, from
providing a federal immigration enforcement agent access to any non-public areas of a
place of labor without a properly executed warrant, except as otherwise required by
federal law.
This bill would prohibit an employer, or a person acting on behalf of the employer,
from providing a federal immigration enforcement agent with access to employee
records without a subpoena.
This bill would require an employer to provide an employee, and the employee’s
representative, a written notice of a federal immigration worksite enforcement action at

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the employer’s worksite, unless prohibited by federal law. That notice must be in the
language the employer normally uses to communicate employment information and
contain the following: a) the name of the federal immigration agency conducting the
enforcement action; b) the date that the employer received notice of the enforcement
action; c) the nature of the enforcement action to the extent known; d) a copy of the
notice of an immigration enforcement audit or inspection of I-9 Employment Eligibility
Verification forms or other employment records, worksite investigations, worksite
interviews of employees, worksite raids, or any other immigration worksite
enforcement action to be conducted; and e) any other information that the Labor
Commissioner deems material and necessary.
This bill would require an employer to provide to an affected employee, and to the
employee’s representative, a copy of the written federal immigration agency notice
describing the results of an immigration enforcement audit or inspection and written
notice of the obligations of the employer and the affected employee arising from the
action, as specified. The notice shall contain the following information: a) a description
of all deficiencies or other items identified in the written federal immigration audit or
immigration enforcement action results notice; b) the time period for correcting any
potential deficiencies identified by the federal immigration worksite enforcement
action; c) the time and date of any meeting with the employer to correct deficiencies; d)
notice that the employee has the right to representation, as specified; e) any other
information that the Labor Commissioner deems material and necessary.
This bill would require an employer to notify the Labor Commissioner of a federal
government immigration agency immigration enforcement action within 24 hours of
receiving notice of the action and, if the employer does not receive advance notice, to
immediately notify the Labor Commission upon learning of the action, unless
prohibited by federal law.
This bill would require an employer to notify the Labor Commissioner before
conducting a self-audit or inspection of employment eligibility verification forms, and
before checking the employee work authorization documents of a current employee,
unless prohibited by federal law.
This bill would prohibit an employer from checking the employment eligibility of a
current employee, including conducting a self-audit or inspection of specified
employment eligibility verification forms at a time or in a manner not required by
specified federal law.
This bill would require the Labor Commissioner, upon a determination that an
employee complainant or employee witness is necessary to conduct an investigation or
prosecution, to issue a certification to the employee stating that he or she has submitted
a valid complaint and is cooperating in the investigation and prosecution.

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This bill would prescribe penalties against employers for failure to satisfy requirements
and prohibitions of between $2,000 and $5,000 for initial violations and between $5,000
and $10,000 for each subsequent violation, though the Labor Commissioner would have
discretion to lower or waive the fines if the violation is based on immigration
enforcement officials gaining access to non-public parts of the workplace without a
warrant and consent was not given by the owner or anyone else with control over the
workspace.
COMMENT
1. Stated need for the bill
According to the author:
It is a frightening time to be an immigrant in the United States.
With the President’s proposal of hiring 10,000 new ICE agents, we
anticipate worksite raids are next. Unfortunately, California has not
had a good history with worksite raids. In the past, ICE routinely
violated constitutional rights such as the 4th amendment’s
protections against illegal searches and seizures. For example, ICE
would use individualized arrest warrants to question and detain
other workers without individualized suspicion.
AB 450, the Immigrant Worker Protection Act, addresses these
concerns and establishes a clear standard to ensure disruptive raids
are conducted legally. To ensure that a workplace raid is as
minimally disruptive as possible and employee privacy is
protected, an employer needs to ask ICE for a judicial warrant
before allowing worksite access and ask for a subpoena before
sharing confidential employee information. AB 450 also requires
employers who receive notice of a worksite enforcement action to
notify the Labor Commissioner and employee’s representative; and
provides workers who are critical to the investigation of a labor
claim the right to receive certification from the Labor
Commissioner that the worker is central to this investigation.
In an environment of division and fear, California must continue to
defend our workers and to ensure that our laws protect all
Californians.
In support, the California Labor Federation and SEIU California write:
In recent executive actions, this Administration has signaled that all
immigrants here without permission are now enforcement
priorities. California has already seen a jump in immigration

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enforcement raids and it is widely anticipated that worksite raids
are next.
Both workers and employers need clear rules for worksite
enforcement. Immigrants are the backbone of so many California
industries and widespread worksite raids will be disruptive and
cause chaos. Employers need straightforward guidelines to know
when to permit access to the worksite and to confidential employee
information.
In further support, Bet Tzedek Legal Services writes:
In the past, ICE agents have routinely conducted mass work-site
sweeps without warrants and based on racial profiling, violating
basic constitutional rights. These raids impact all employees, and
could cause all workers, citizen and undocumented, to be detained
in harsh conditions at a worksite or could lead to the exposure of
confidential personal information held by the employer. By
requiring employers to allow access to the workplace to
immigration authorities only when they have a judicial warrant, or
to share confidential information only when presented with a
subpoena, AB 450 will establish worker safeguards to ensure that
employees’ due process and privacy rights are protected at the
workplace.
In further support, Jim Cochran, Founder and General Manager of Swanton Berry
Farms, Inc., writes:
I have been reading about “raids” by ICE that appear to be quite
disruptive and unsettling to all workers, citizens and non-citizens
alike. As you know, this has made it more difficult to hire and
retain workers. While I know that ICE has a difficult job to do, I am
hoping that they can proceed with their work in a measured way,
using appropriate warrants and subpoenas. I believe that AB 450
will provide us with a good framework to work with immigration
officers. The last thing we need is to create panic in the ag worker
community.
2. Expressed concerns with the bill
In opposition to the bill, the Society for Human Resource Management writes:
From the Human Resource professional’s perspective, AB 450,
while well intentioned, will add a host of unnecessary and
burdensome requirements, create many logistical challenges, and

AB 450 (Chiu)
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could possibly force human resource professionals to decide
between abiding by federal law or state law.
Compliance with AB 450 requires multiple employees at the
employers’ place of work to understand fully federal law regarding
ICE agents’ access and puts employers in a bind. For example, an
administrative assistant who is approached by an ICE agent is
likely to comply with what the uniformed officer asks. If the ICE
officer is asking for access beyond what is provided for in federal
law, it is highly unlikely that the administrative assistant will be
aware. […]
Additionally, self-audits of I-9 files performed by our members are
reasonable and should be encouraged, not discouraged. There is a
distinction to be made between an audit of forms to ensure they are
filled out correctly in compliance with federal law, and situations
where employers actually go back and look at documents again or
ask employees for new documentation – practices that are already
prohibited by law.
In further opposition to the bill, the California Chamber of Commerce,
about 50 of its local affiliates, and a variety of trade associations write:
[AB 450] penalizes an employer for choosing to cooperate with
federal immigration enforcement authorities, thereby denying the
employer the right to determine the best course of action for its
business under these difficult circumstances [when an immigration
enforcement action occurs at its place of employment]. Believing its
employment eligibility verification and recordkeeping practices are
in full compliance with federal law, an employer may determine
that cooperation with federal enforcement officials is its best course
of action. Unfortunately, AB 450 forbids an employer from
cooperating with federal enforcement officials and instead requires
the employer to demand “a judicial warrant.” […]
[AB 450] imposes complex written notice requirements on the
employer to be provided to each employee and the employee’s
representative regarding I-9 audits by federal authorities. […] Who
is the employee’s representative – is an employer thus required to
obtain the name and contact information from each employee of
who their representative would be in the event of a notice issued
under this legislation? […] How does an employer determine who
is an affected employee?

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3. What ICE can and cannot do at workplaces now
Absent a judicial warrant, a subpoena, exigent circumstances, or consent, there are
constitutional and legal limits on where Immigration and Customs Enforcement (ICE)
officers may go and what documents they can demand to see.
a. Workplace immigration raids
Pursuant to federal regulations and consistent with Fourth Amendment prohibitions on
unreasonable search and seizure, there are significant restraints on ICE agents’ access to
worksites. Although there are some exceptions (under exigent circumstances, for
example), the dominant rule is as follows:
An immigration officer may not enter into the non-public areas of a
business, a residence including the curtilage of such residence, or a
farm or other outdoor agricultural operation, except as provided in
section 287(a)(3) of the Act, for the purpose of questioning the
occupants or employees concerning their right to be or remain in
the United States unless the officer has either a warrant or the
consent of the owner or other person in control of the site to be
inspected. When consent to enter is given, the immigration officer
must note on the officer's report that consent was given and, if
possible, by whom consent was given. If the immigration officer is
denied access to conduct a site inspection, a warrant may be
obtained. (8 C.F.R. Sec. 287.8(f)(2).)
In order to obtain such a warrant, ICE agents must comply with Fourth Amendment
requirements. In other words, to conduct the search, the ICE agents must convince a
magistrate judge that they have “probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the persons or things to be seized.”
(U.S. Const., Amend. IV). In the case of immigration enforcement, federal courts
generally apply a relaxed standard. Blackie’s House of Beef, Inc. v. Castillo (D.C. Cir. 1981.)
659 F.2d 1211. Still, the application for the warrant must have “sufficient specificity to
enable the judge to make an independent determination of whether probable cause
exists and to prevent the agents from having uncontrolled discretion to rummage
everywhere in search of seizable items once lawfully within the premises.” International
Molders’ and Allied Workers’ Local No. 164 v. Nelson (9th Cir. 1986) 643 F.2d 547, 553 (9th
Cir. 1986), citing United States v. Condo (9th Cir. 1986) 782 F.2d 1502, 1505. And, the
warrant must still be signed by a magistrate judge.
Without such a warrant, ICE agents are limited to public areas of a business. There, as
in any public location, ICE agents can question any individual “believed to be an alien”
about his or her right to be in the United States. (8 U.S.C. Sec. 1357(a)(1).) If that
questioning leads to sufficient probable cause, the ICE agents may proceed with an
arrest. On the other hand, unless the ICE agents have such probable cause, the

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individual must be permitted to walk away and has the right not to answer questions,
apart from a request for a name. (U.S. Const., Amend. 5; Matter of Guevara (BIA 1991) 20
I&N Dec. 238; but see Hiibel v. Sixth Judicial District Court of Nevada (2004) 542 U.S. 177
(holding that people may be required to identify themselves to state law enforcement
when so required by state law; California has no such state law).)
b. Inspection of employment records
Immigration officers have the power to inspect employee records. However this
authority is not unlimited. First, by law ICE must give employers three days’ notice
before inspecting employee records and I-9 forms. Second, an employer is not legally
obligated to provide access for the inspection unless the demand for inspection is
accompanied by a subpoena. Immigration officers have the power to issue subpoenas.
(8 U.S.C. Sec. 1225(d)(4); 8 C.F.R. Sec. 287.4.) Thus, when ICE gives an employer notice
that it intends to inspect the employer’s work eligibility records, it can do so with a
subpoena, and the employer is then legally obliged to comply. Absent the subpoena,
ICE can only access the records if the employer consents to it.
Section 2 of AB 450 would add a Labor Code provision requiring employers not
provide access to employee records to ICE in the absence of a subpoena.
4. Supremacy clause and preemption considerations
Whenever federal and state laws conflict, the federal law governs. (U.S. Const., art. VI.)
“Under the Supremacy Clause, from which our pre-emption doctrine is derived, any
state law, however clearly within a State’s acknowledged power, which interferes with
or is contrary to federal law, must yield.” (Gade v. National Solid Waste Management
Association (1992) 505 U.S. 88, 108.)
U.S. Supreme Court precedent identifies three types of pre-emption: express, field, and
conflict. Express pre-emption applies where Congress explicitly states that a federal
statute is intended to pre-empt state legislation. Field pre-emption occurs when federal
legislation is so pervasive in an area of law that Congress has left no room for the states
to supplement it. Conflict pre-emption takes place when a state and federal statute are
so at odds that it is impossible to comply with both at once. (Chemerinsky,
Constitutional Law Principles and Policy, Fifth Edition, p. 414.)
In Arizona v. United States (2012) 567 U.S. 387, the U.S. Supreme Court indicated that this
analysis applies to state laws that bear some relationship to immigration matters. In that
case, the Court upheld some provisions of an Arizona statute that only related
indirectly to immigration enforcement, while striking other provisions that more
directly interfered.

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Applying a similar analysis to AB 450 arguably suggests that the bill is not preempted.
There is nothing express in federal law telling states they cannot place limitations on the
ability of employers to consent to workplace immigration raids.
As to field preemption, immigration law is the province of the federal government.
Nonetheless, as the Arizona case made clear, the federal government’s sweeping power
to govern the field of immigration law itself does not prohibit states from enacting laws
that have some connection to immigration, so long as they do not attempt to regulate
immigration itself. AB 450 does not purport to regulate who may or may not be in the
country lawfully and it does not attempt to change the rules regarding who is legally
authorized to work. As a result, it does not appear that AB 450 would encroach upon
the field of immigration regulation such as to trigger preemption.
Finally, AB 450 would not conflict with federal law because it would be perfectly
possible to comply with AB 450’s provisions and federal law at the same time. Simply
put, AB 450 would not prevent the federal government from doing anything it is not
already prevented from doing. What AB 450 eliminates is an employer’s discretion to
consent to allow the federal government to go beyond what it would otherwise be
legally prohibited from doing. As the Assembly Committee on the Judiciary’s analysis
of this bill concluded:
Existing federal law already requires immigration agents to obtain
a warrant to search a worksite and a subpoena to access employee
records, unless the employer grants consent. This bill effectively
takes away the employer's option to grant consent. Taking away
this option to consent may or may not be fair to the employer, or it
may or may not be good policy, but it does not “conflict” with
federal law as that term is used in federal preemption analysis.
That is, it is still possible for the employer to comply with both state
and federal law. If the employer complies with the state law by
asking to see a warrant, he or she is not violating any federal law.
The employer, by asking to see a warrant, is simply doing
something that he or she clearly has a right to do under federal law.
(Analysis of AB 450, March 23, 2017 Version (April 25, 2017,
Hearing Date) Assembly Committee on the Judiciary, p. 7)
5. The employee-in-the-headlights problem
Earlier versions of this bill sustained criticism on the ground that employers could be
subjected to fines in circumstances in which immigration enforcement officers obtained
consent from employees who either lacked sufficient training to demand to see a
warrant, or knew better, but felt too intimidated in the moment to request a warrant. A
newly hired greeter at a restaurant, for example, might panic at the sudden appearance
of federal agents at reception and, not wanting to cause a scene with diners, might

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quickly acquiesce to a request to be escorted back to the kitchen, instead of referring the
matter to the manager or asking to see legal authority in the form of a judicial warrant.
To address this concern without eliminating the strong incentive for employers to train
all staff on how to respond appropriately to the presence of immigration enforcement
officers, the bill has been amended to allow the Labor Commissioner to reduce or waive
the fines under certain circumstances. Specifically, the fines can be lowered or waived if
immigration officers gain access to non-public parts of the workplace without the
consent of the business owner or someone with control over the workspace. This
compromise still incentivizes employers to ensure that all employees are well trained on
proper procedure in response to the presence of immigration authorities, but puts the
primary responsibility on owners and managers. It also acknowledges the reality of
how quickly a workplace immigration raid can unfold and the level of pressure and
intimidation that workers may feel when confronted by federal agents.
6. Employment eligibility verification and reverification: the I-9 process and its abuses
To grasp the purpose and function of AB 450’s notification requirements, it is helpful to
put them in the context of the basic law behind establishing eligibility to work. In broad
strokes, that law works as follows.3
All employers are required to verify that new hires are authorized to work in the United
States. To do so, they must have the employee fill out Section 1 of an I-9 form, providing
basic information about their identity and attested to their citizenship or immigration
status in the United States. This step is supposed to happen after a job offer has been
accepted, but before the employee completes the employee’s first day of work.
Within three business days of starting work, the new hire must present evidence, in the
form of one or a combination of specified documents, that the new hire is eligible to
work in the United States. As the employer is not expected to be a forensic expert or to
act as an immigration authority, the employer must simply confirm that the documents
presented appear, on their face, reasonably genuine and relate to the person who is
presenting them. The employer makes notes about the documents reviewed in Section 2
of the I-9 form, may take copies of the documents if the employer chooses to do so, and
then the process is done. Employers must keep I-9 forms on file for three years after the
person is hired or one year after the person is terminated, whichever is later.
As a default matter, once an employer has verified an employee’s eligibility to work at
the time of hire, there is no need to re-verify that eligibility ever. Re-verification is only
necessary in certain specific circumstances, such as when the employee initially
establishes eligibility using a document that only confers temporary eligibility to work,
3

The information contained in this Comment is based on the U.S. Customs and Immigration Services’
Handbook for Employers – Guidance on Completing Form I-9 (Jan. 22, 2017), available at
<https://www.uscis.gov/sites/default/files/USCIS/Verification/E-Verify/E-Verify_Native_Documents/EVerify%20Manuals%20and%20Guides/M-274-Handbook-for-Employers.pdf> (as of July 1, 2017).

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such as an H1-B visa, for example. In that case, the employer should re-verify the
employee’s eligibility to work prior to the expiration of the temporary document by
going through the I-9 process again.
Federal and state law prohibit the improper use of the I-9 work eligibility process.
Among the abuses forbidden are discriminatory application of the process (demanding
more, or particular, documentation of people from certain countries, for instance) and
retaliatory use of the I-9 process (suddenly re-verifying the eligibility of an employee
who has expressed concern about safety at the worksite, for example.)
When ICE officers inspect an employer’s I-9 records, they may be looking for
information about a particular person, for evidence that fraudulent documents have
been used, or for examples of temporary eligibility that has expired. What the ICE
officers discover may indeed indicate that a worker used false documents or is no
longer eligible to work. Not infrequently, however, there is a more innocent
explanation. Employers and employees sometimes forget to re-verify when new
eligibility documents come in or the basis for their eligibility changes (when they
naturalize, for example.)
The purpose of the notice from employers to employees about ICE audits of I-9
information is to provide notice and an opportunity to employees to address the
situation. Of course, if the employee is not or never was eligible to work, there may be
nothing that the employee can do and the employer may have to fire that employee. In
other cases, however, the notifications may enable employees to update the basis for
their work eligibility.
The employer notice to the Labor Commission serves a related purpose. State law
prohibits employers from using the eligibility verification process in a discriminatory or
retaliatory fashion. By requiring employers to notify the Labor Commissioner whenever
they intend to check an employee’s eligibility status outside of the time and manner
prescribed by law, the Labor Commissioner will have the opportunity to ensure that the
employer is not engaging the practice for abusive purposes.
7. Amendments
The notification requirements that this bill creates impose a burden on employers at
what may already be a pressure-filled time. Nearly all parties agree that comprehensive
immigration reform would be a vastly superior solution. In the absence of federal action
on that front, however, and confronted by a new set of immigration enforcement
priorities that target a large part of the workforce that California counts on to make its
economy go each day, these notification requirements serve a compelling purpose. Still
it may be possible to streamline them somewhat to make them as simple as possible to
follow, while still achieving their purpose. With that in mind, the author may wish to
consider the following amendments, which may be summarized as follows:

AB 450 (Chiu)
Page 14 of 20



The employer can take the ICE agent to a non-public part of the business for
purposes of verifying the warrant only.
The notification requirements have been modified to make it less burdensome on
employers to comply. They will have more time; do not have to give individualized
notice to all employees; only have to hand deliver notices to employees who ICE has
marked as having problematic documents; and will be have a standardized form
available to them from the Labor Commissioner to make the notification easier.
Amendment 1
On page 3, after line 16, insert:
(c) This section shall not preclude an employer or person acting on
behalf of an employer from taking the federal government
immigration enforcement agent to a nonpublic area, where
employees are not present, for the purpose of verifying whether the
federal government immigration enforcement agent has a judicial
warrant, provided no consent to search non-public areas is given in
the process.
Amendment 2
On page 3, in line 17, strike “(c)” and insert:
(d)
Amendment 3
On page 4, in line 7, after “(a)” insert
(1)
Amendment 4
On page 4, in line 8, after “provide” insert:
written notice
Amendment 5
On page 4, in line 8, after “each” insert:
current
Amendment 6
On page 4, in lines 8 and 9, strike “employee, and the employee’s
representative, a written notice,” and insert:
employee, by the method and
Amendment 7
One page 4, in line 13, strike out “24” and insert:
72

AB 450 (Chiu)
Page 15 of 20
Amendment 8
On page 4, in lines 13 through 16, strike out “inspection. The notice
shall be delivered by hand at the workplace if possible and, if hand
delivery is not possible, by mail and email, if the email address of
the employee is known, and” insert:
Written notice shall also be given within 72 hours
Amendment 9
On page 4, in line 16, after “employee’s” insert:
authorized
Amendment 10
On page 4, in line 17, strike out “representative” and insert:
representative, if any
Amendment 11
On page 4, in line 18, strike out “(1)” and insert:
(A)
Amendment 12
On page 4, in line 21, strike out “(2)” and insert:
(B)
Amendment 13
On page 4, in line 22, strike out “(3)” and insert:
(C)
Amendment 14
On page 4, in line 23, strike out “(4)” and insert:
(D)
Amendment 15
On page 4, in line 26, strike out “(5)” and insert:
(E)
Amendment 16
On page 4, after line 27 insert:
(2) On or before July 1, 2018, the Labor Commissioner shall develop
a form that employers may use to comply with the requirements of
subdivision (a) to inform employees of a notice of inspection to be
conducted of I-9 Employment Eligibility Verification forms or other
employment records conducted by a federal immigration agency.
The form shall be available on the Labor Commissioner’s website
so that it is accessible to any employer.

AB 450 (Chiu)
Page 16 of 20
Amendment 17
On page 4, on line 28, after “(b)” insert:
(1)
Amendment 18
On page 4, in line 29, after “each” insert:
current
Amendment 19
On page 4, in line 29 after “employee’s” insert:
authorized
Amendment 20
On page 4, in line 30, after “representative,” insert:
if any,
Amendment 21
On page 4, in line 33, strike out “24” and insert:
72
Amendment 22
On page 4, in line 34, strike out “24” and insert:
72
Amendment 23
On page 4, in line 36, after “employee’s” insert:
authorized

Amendment 24
On page 4, in line 36, after “representative,” insert:
if any,
Amendment 25
On page 5, in line 3, after “employee’s” insert:
authorized
Amendment 26
On page 5, in line 5, strike out “(1)” and insert:
(A)
Amendment 27
On page 5, in line 8, strike out “(2)” and insert:
(B)

AB 450 (Chiu)
Page 17 of 20
Amendment 28
On page 5, in line 10, strike out “(3)” and insert:
(C)
Amendment 29
On page 5, in line 12, strike out “(4)” and insert:
(D)
Amendment 30
On page 5, in line 14, strike out “(5)” and insert:
(E)
Amendment 31
On page 5, after 15 insert:
(2) For purposes of this subdivision, an “affected employee” is an
employee identified by the federal government immigration agency
inspection results to be an employee who may lack work
authorization, or an employee whose work authorization
documents have been identified by the federal government
immigration agency inspection to have deficiencies.
Amendment 32
On page 5, in lines 16 and 17, strike out “notice to all affected
employees or their representatives” and insert:
the notices required by this section
Amendment 33
On page 5, in line 23, strike out “affected”
Amendment 34
On page 5, after line 25, insert:
(d) For purposes of this section, an “employee’s authorized
representative” means a collective bargaining representative.
Amendment 35
On page 5, in line 26, strike out “(d)” and insert:
(e)
Amendment 36
On page 6, in line 3 after “employee’s” insert:
authorized
Amendment 37:
On page 6, in line 3, strike out “representative” and insert:
representative, if any,

AB 450 (Chiu)
Page 18 of 20
Amendment 38
On page 6, after line 15 insert:
(e) For purposes of this section, an “employee’s authorized
representative” means a collective bargaining representative.
Amendment 39
On page 6, in lines 19-21, strike out “before conducting a self audit
of, inspection of, or review of, I-9 Employment Eligibility
Verification forms and” and insert:
and the employee’s authorized representative, if any,
Amendment 40
On page 6, after line 35 insert:
(d) For purposes of this section, an “employee’s authorized
representative” means a collective bargaining representative.
Support: Alliance of Boys and Men of Color; Asian Americans Advancing Justice California; Bet Tzedek Legal Services; Brightline Defense Project; California Association
of Local Conservation Corps; California Domestic Workers Coalition; California
Federation of Teachers; California Immigrant Policy Center; California Labor
Federation; California Professional Firefighters; California Rural Legal Assistance
Foundation; Ceja Vineyards; the City and County of San Francisco; Coalition for
Humane Immigrant Rights; Robledo Family Winery; San Francisco Labor Council; San
Mateo County Central Labor Council; the Santa Clara County Wage Theft Coalition;
SEIU California; State Building and Construction Trades Council; United Auto Workers
– Local 5810; Swanton Berry Farm; United Domestic Workers of America – AFSCME
Local 3930; United Domestic Workers of America – AFSCME Local 3930/AFL-CIO;
United Farm Workers; United Food and Commercial Workers Union – Western States
Council; Western Center on Law & Poverty; Worksafe; 7 individuals
Opposition: Agricultural Council of California; Associated General Contractors of
California; Association of California Egg Farmers; Bay Area HR Executives Council;
California Association of Wheat Growers; California Association of Winegrape
Growers; California Bankers Association; California Bean Shippers Association;
California Building Industry Association; California Business Properties Association;
California Chamber of Commerce; California Citrus Mutual; California Cotton Ginners
and Growers Association, Inc.; California Employment Law Council; California Farm
Bureau Federation; California Framing Contractors Association; California Fresh Fruit
Association; California Grain and Feed Association; California League of Food
Processors; California Manufacturers and Technology Association; California Pear
Growers Association; California Pool & Spa Association; California Professional
Association of Specialty Contractors; California Restaurant Association; California
Retailers Association; California Seed Association; California Trucking Association;
California Warehouse Association; Camarillo Chamber of Commerce; Central Coast HR
Association; Central Valley HR Management Association; Chambers of Commerce

AB 450 (Chiu)
Page 19 of 20
Alliance of Ventura and Santa Barbara Counties; The Chamber of Commerce of the
Santa Barbara Region; Construction Employers’ Association; El Centro Chamber of
Commerce and Tourist Bureau; Family Business Association of California; Family
Winemakers of California; Greater San Fernando Valley Chamber of Commerce;
Greater Riverside Chamber of Commerce; Grower-Shipper Association of Central
California; HR Association of Central California; Inland Empire Society for HR
Association Management; Long Beach Area Chamber of Commerce; Murrieta Chamber
of Commerce; National Federation of Independent Businesses; North Orange County
Chamber of Commerce; Oceanside Chamber of Commerce; Official Police Garages of
Los Angeles; Oxnard Chamber of Commerce; Professionals in Human Resources
Association; Redondo Beach Chamber of Commerce and Tourist Bureau; Sacramento
Area HR Association; San Joaquin Human Resource Association; Santa Barbara HR
Association; Santa Maria Chamber of Commerce; Sierra Human Resources Association;
Society for Human Resource Management; Society for Human Resource Management California State Council; Society for Human Resource Management – Central California;
Society for Human Resource Management – Kern County; Society for Human Resource
Management – Northstate; Society for Human Resource Management – San Diego;
Society for Human Resource Management – Tulare/Kings County; Society for Human
Resource Management – Wine Country; South Bay Association of Chambers of
Commerce; Southwest California Legislative Council; Tulare Chamber of Commerce;
Vacaville Chamber of Commerce; Ventura County Agricultural Association; Western
Agricultural Processors Association; Western Carwash Association; Western Growers
Association; Wine Institute; Yuba-Sutter Chamber of Commerce
HISTORY
Source: California Labor Federation; SEIU California
Related Pending Legislation:
AB 291 (Chiu, 2017) would establish stronger legal protections for tenants against
landlords who may disclose, or threaten to disclose, a tenant’s immigration status to
federal authorities as part of a pattern of harassment and retaliation. AB 291 is
currently pending consideration on the Assembly Floor.
SB 54 (De León, 2017) would create the California Values Act that would bar state or
local resources from being used for immigration enforcement and prohibit state or local
law enforcement agencies from detaining or transferring anyone for deportation
without a judicial warrant. SB 54 is currently pending consideration in the Assembly
Committee on the Judiciary.
Prior Legislation:
SB 1001 (Mitchell, Chapter 782, Statutes of 2016) prohibited, among other things, any
attempt to reinvestigate or re-verify an incumbent employee’s authorization to work
using an unfair immigration-related practice.

AB 450 (Chiu)
Page 20 of 20
SB 666 (Steinberg, Chapter 577, Statutes of 2013) prohibited employers from making,
adopting, or enforcing any rule, regulation, or policy preventing an employee from
disclosing information to a government or law enforcement agency, as provided, and
extended those prohibitions to preventing an employee from, or retaliating against an
employee for, providing information to, or testifying before, any public body
conducting an investigation, hearing, or inquiry.
AB 622 (Hernández, Chapter 696, Statutes of 2015) prohibited an employer or any other
person or entity from using the E-Verify system at a time or in a manner not required
by a specified federal law or not authorized by a federal agency memorandum of
understanding to check the employment authorization status of an existing employee or
an applicant who has not received an offer of employment, except as required by
federal law or as a condition of receiving federal funds.
AB 1236 (Fong, Chapter 691, Statutes of 2011) set forth a series limitations on the use of
electronic employment eligibility verification systems.
Prior Vote:
Senate Labor and Industrial Relations Committee (Ayes 3, Noes 1)
Assembly Floor (Ayes 50, Noes 24)
Assembly Appropriations Committee (Ayes 10, Noes 6)
Assembly Judiciary Committee (Ayes 8, Noes 3)
Assembly Labor and Employment Committee (Ayes 5, Noes 2)
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