130 | 2023 Cal-Peculiarities ©2023 Seyfarth Shaw LLP www.seyfarth.com A California employer engages in an “adverse action” if the employer reports or threatens to report to the government the suspected citizenship or immigration status of an employee, former employee, or prospective employee because that person has exercised a right under the Labor Code or other laws.541 Before 2016, California allowed employers in certain circumstances to favor job candidates who were not “aliens.” Under the old law, Labor Code section 1725 defined an alien as “any person who is not a born or fully naturalized citizen of the United States,” and Labor Code section 2015 created a three-fold order of preference for certain California public-works applicants: California “citizens,” U.S. “citizens,” and “aliens.” In 2015, however, the California Legislature repealed Labor Code sections 1725 and 2015.542 As of 2016, employers, even on public works projects, cannot use a citizens preference system to screen applicants, although employers need not give preferential treatment to noncitizens. And as of 2018, the Legislature has scrubbed from the Labor Code all references to “aliens,” on the thought that this term is outdated and derogatory to immigrant workers. 5.17.3 California employers conscripted in resistance to federal law enforcement California—led by the Legislature, the Governor, and the Attorney General—resisted federal immigration law enforcement by the Trump Administration. California asserted, through litigation and various statutes, its traditional police powers to protect all state residents, including undocumented immigrants, from perceived overreaching by the U.S. Departments of Homeland Security and Justice. Further, California sought to enlist employers in the cause. Under the Immigrant Worker Protection Act, effective in 2018,543 California employers face a series of obligations designed to protect workers from enforcement of federal immigration laws. Employers who fail to abide by the new requirements incur liability for civil penalties in amounts up to $10,000, recoverable by the Labor Commissioner or, in some instances, by the Attorney General. Among a California employer’s duties: Unless an immigration enforcement agent provides a “judicial warrant,” California employers must not voluntarily consent to having the agent “enter any nonpublic areas of a place of labor.”544 Absent a “subpoena or judicial warrant,” or a notice of inspection of I-9 Forms, California employers must not voluntarily consent to an immigration enforcement agent obtaining access to “the employer’s employee records.”545 California employers must notify current employees, by posting, of “any inspections of I-9 Employment Eligibility Verification forms or other employment records conducted by an immigration agency within 72 hours of receiving notice of the inspection,” and must give affected employees a copy of I-9 inspection results.546 California employers must not, except as federal law requires, re-verify the employment eligibility of any employee.547 These California challenges to federal supremacy sparked a response. In 2018 the U.S. Justice Department sued California in federal court to seek a preliminary injunction against the enforcement of California statutes addressing immigration issues.548 A federal district court largely denied preliminary relief to the U.S. government but did grant a preliminary injunction against three provisions of California law: Under that injunction, California could not enforce enactments that prevent employers from (1) giving immigration enforcement officials employment or payroll records without a judicial warrant (except for Form I-9 audits), (2) re-verifying employee I-9 Forms (unless required by federal law), and (3) giving immigration enforcement officials warrantless access to the non-public areas of the employer’s business.549
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