Partial Injunction Granted Against Sanctuary State Laws

    On July 4, 2018, the Honorable John A. Mendez, Federal District Judge for the Eastern District of California, granted a request from the United States government for a preliminary injunction enjoining the State of California, Governor Brown, and Attorney General Becerra from enforcing parts of Assembly Bill 450 (AB 450).[1]  AB 450, which became effective on January 1, 2018, limits a private sector employer’s conduct when dealing with federal immigration enforcement.  In granting the federal government’s request for a preliminary injunction, the court blocked the state from fining employers who voluntarily grant U.S. Immigration and Customs Enforcement (ICE) access to the workplace or employee personnel records. In addition, the ruling blocks a provision that prohibits an employer from re-verifying current employees’ eligibility for employment in any manner or frequency not permitted under federal law. Prior to the injunction, employers who violated these provisions could be fined up to $10,000.

    With respect to the blocked provisions, the court found that in enacting AB 450, the state impermissibly infringed on the sovereignty of the federal government.  However, the court upheld the two employee notice provisions of AB 450 as “permissible exercises of California’s sovereign power.”  In reaching its decision, the court explained that the notice provisions were simply intended to provide employees with an opportunity to cure any deficiencies in their paperwork, and providing employees such an opportunity does not impede or frustrate the federal government’s immigration objectives.  As such, under AB 450, employers in California must still:

• Give notice to employees of any inspection of Forms I-9 or other employer records within 72 hours of receiving a Notice of Inspection.
• Have notice obligations once the inspection is over. Within 72 hours of receiving the inspection results, employers must give each “affected employee” a copy of the results and a written notice of the employer’s and employee’s obligations arising from the inspection.

    At this time, employers are not required to demand a judicial warrant or subpoena before granting ICE access to workers or employee records.  The District Court’s decision can be appealed by either party. In the interim, California employers should continue to comply with AB 450’s employee notice requirements and consult legal counsel with any questions regarding AB 450 or permissible conduct during a federal immigration audit.

[1] U.S. v. State of California (E.D. Cal. July 4, 2018) Case No. 2:18-cv-490-JAM-KJN (order granting preliminary injunction).