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California Publishes Template Posting Notice for Employers Receiving an I-9 Notice of Inspection

The California Labor Commissioner’s Office has just released a must-have template for HR departments, which addresses the state’s relatively new law on Form I-9 inspections and the protection of immigrant rights. Late last year, Governor Jerry Brown signed the controversial Immigrant Worker Protection Act (AB 450) into law, which requires (among other things) that employers notify their employee workforce of any government Form I-9 inspections within 72 hours or face potential penalties and fines. The template posting notice is described in some detail below, and can be downloaded here in English or here in Spanish.

As I discussed in my blog last year, the new law puts California employers squarely between the proverbial rock and a hard place. During an I-9 inspection, Immigration and Customs Enforcement (ICE) will demand access to a wide variety of information to ensure that the employer is complying with the law. The prudent employer will want to cooperate as much as possible, but those in California now have the added stress of making sure that they’re (a) not providing too much information or access and (b) satisfying the new law’s notice requirements.

To make matters worse, the California labor department is finding plenty of new opportunities to test employers’ compliance with this new law. Just this month, ICE served Notices of Inspection (NOIs) on 77 Northern California businesses in San Francisco, San Jose, and Sacramento. Each one of these employers would have been required (under the new law) to notify their workers of the inspection through a public posting. While California has not specifically indicated how they will be policing the law, California Attorney General Xavier Becerra has expressed a strong desire to prosecute employers who violate these new requirements.

The good news is that California employers now have a “template” form notice (provided by the California Labor Office) which they can use to satisfy the I-9 NOI notice requirement. Here’s what you need to know:

When do I need to provide notice to my employees of an audit?

Section 90.2(a)(1) of the California Labor Code requires employers to provide notice to current employees of any inspection of I-9 Employment Eligibility Verification forms or other employment records conducted by an immigration agency.

If you don’t know what an I-9 inspection is (or looks like), consider yourself lucky. As mentioned above, the process begins with the receipt of an NOI from ICE that demands access to Form I-9s and related records. The NOI itself is a template (i.e., boilerplate) form which typically includes an attachment or subpoena that specifies the scope of the audit, the specific documents requested, and the 3-day deadline in which all of this information must be provided to ICE. For an overview of the entire I-9 inspection process, visit the ICE website here.

How soon do I need to provide notice to my employees after receiving the audit?

Very soon. The California law attempts to mirror the NOI timing by requiring employers to provide notice within 72 hours of receiving the NOI. There is an important distinction though. Employers can ask (and sometimes receive) extensions from ICE in regards to the 3-day delivery deadline. As many HR managers are painfully aware, three days is very short time in which to gather I-9 records, and organizations are frequently scrambling to ensure that all of the documents are present for inspection.

The California law, however, provides no such allowance. Therefore, regardless of whether or not ICE provides an extension, California employers are still required to notify employees of the audit within that 72-hour time window.

How do I deliver the notice to my employees?

The law indicates that employers should “post” the notice, which presumably means that it should be at the employer’s place of business in an area frequented by employees where it may be easily read during the workday (this is the requirement for other California labor law notices). As of this writing, the California Department of Industrial Relations has listed the sample NOI notice at the very top of their “Workplace Postings” webpage available here. If there is a chance that an employee or group of employees will not see the notice at this location, the employer may also want to consider delivering the notice through other means.

In what language must the notice be provided?

The notice must be written in the language you normally use to communicate employment-related information to the employee (the idea being that the employee must be capable of reading and understanding the contents of the notice). California has provided both English and Spanish versions of their sample template which can be used.

How do I complete the Sample NOI Notice?

There are five areas on the sample NOI notice that you will need to complete.

  1. First, you’ll need to check a box indicating the name of the immigration agency conducting the inspection. In the vast majority of instances, this will be the first selection – ICE (Immigration and Customs Enforcement).
  1. The date the employer received the NOI (which, given the stress involved, will likely be something that you can easily remember).
  1. The date the inspection will be conducted – this will be printed on the NOI received from ICE, but note that the date may be later if you’ve managed to secure an extension (as noted above).
  1. Location of the inspection – there are 2 checkboxes here, indicating either the employer’s place of business/worksite or a different location altogether.
  1. The subject of the I-9 inspection, which includes a laundry list of items which are typically requested in an NOI. Check all that apply.

Is there anything else that I need to include with the sample posting?

The law specifically requires that the posting include “A copy of the Notice of Inspection of I-9 Employment Eligibility Verification forms for the inspection to be conducted.” This requirement, however, is a bit puzzling since the very next subsection of the law indicates that “[a]n employer, upon reasonable request, shall provide an affected employee a copy of the Notice of Inspection of I-9 Employment Eligibility Verification form.” This sentence would seem to imply that the NOI is only given out upon request, and thus in a way, contradicts the previous point about including the NOI in the posting.

Nevertheless, the sample notice clearly notes that a copy of the NOI and accompanying documents must be posted or given to the employees with this notice. Therefore, it’s probably safest to include the NOI along with the notice (which unfortunately means you’ll likely need to staple several pieces of paper in your required posting).

What should I do now in preparation for this new requirement?

First and foremost, you should talk to an attorney who is licensed in California – preferably one who is knowledgeable in both immigration and employer compliance. While this notice requirement may seem relatively straight-forward, there are a host of potential complications with the AB 450 law in general which may soon see the light of day as ICE continues to ramp up its enforcement efforts. In addition, employers are strongly encouraged to conduct a thorough top to bottom review of their I-9 and E-Verify compliance initiatives to ensure they can withstand the inevitable visit from a friendly government officer.

About John Fay

John Fay is an immigration attorney and technologist with a deep applied knowledge of I-9 compliance and E-Verify rules and procedures. During his career, John has advised human resource managers and executives on a wide variety of corporate immigration compliance issues, including the implementation of electronic I-9 systems. In his current role, John serves as President at the LawLogix division of Hyland Software, Inc., where he oversees all aspects of the division’s operations and provides strategic leadership and direction in the development and support of Form I-9, E-Verify, and immigration case management software solutions.

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