Veteran employment
attorney Curt Surls comments on an ongoing lawsuit between the U.S. Justice Department
and the State of California and its effect on Assembly Bill 450 (“AB 450”).
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 work place.
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was not preempted by federal immigration law, but still superseded by the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presumes ‘the historic police powers of the States’ are not superseded ‘unless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 “[u]ltimately, 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
reverification, 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.
*** Lawyer Curt Surls specializes 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. With nearly 30 years of experience focusing almost exclusively on this area of law, attorney Curt Surls and his law firm provide the personalized assistance and effective support his clients need. References: Law Firm Website: www.curtsurlslaw.com; Professional Profile on law firm website: https://www.curtsurlslaw.com/attorney-profile/; LinkedIn Profile: https://www.linkedin.com/in/curt-surls-83118b5/; Attorney Profile: https://solomonlawguild.com/curt-surls%2C-esq; Attorney News: https://attorneygazette.com/curt-surls%2C-esq#5282ef1c-68bd-44ca-a705-13c4c4d19d33
