130 | 2024 Cal-Peculiarities ©2024 Seyfarth Shaw LLP www.seyfarth.com As of 2016, even on public works projects, employers cannot give preference to citizens over non-citizen workers. In other words, once an individual has confirmed they are legally authorized to work, an employer cannot give preference based on the source of that authorization (i.e., citizenship, green card, etc.). In 2023, the Governor also unveiled a pilot program to provide free immigration legal assistance to undocumented farmworkers who are involved in California labor investigations, further emphasizing the general protection unauthorized workers receive under California laws.530 5.17.3 California employers must follow state procedural requirements if confronted by 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 2018,531 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, the Attorney General. 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.532 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 cannot 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 nonpublic areas of the employer’s business.533 Meanwhile, California added a new immigrant protection: no party can disclose an individual’s immigration status in open court, unless the party first persuades a judge in a private hearing that the evidence is relevant and admissible.534 5.18 Employer’s Attorney-Client Privilege In America generally, an employer can secure a confidential written opinion from an outside law firm and have the firm interview the employer’s employees to learn facts needed to prepare the opinion, all without the fear that later, in litigation, the employer’s legal adversaries can discover what facts the law firm relied upon in rendering its legal advice. That principle applies in California, too, but only because the California Supreme Court granted extraordinary relief to correct the errors of two levels of lower courts. In one wage and hour class action challenging the classification of managers as exempt from overtime pay, the Court of Appeal ruled that it would not disturb a trial-court order that the defendant must turn over to a discovery referee an opinion letter that the defendant had secured from a law firm, for the purpose of having the referee redact out and reveal to the plaintiffs the “facts” that the law firm had relied upon in rendering its legal advice.535 The California Supreme Court eventually issued a ringing endorsement of the attorney-client privilege, recognizing that confidential attorney-client communications are protected from discovery in their entirety, regardless of whether the facts contained therein are otherwise discoverable, and that courts cannot compel parties to submit documents to in camera review to determine whether the communication is privileged.536
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