The dilemma is that it remains illegal under federal law for employers to knowingly hire or retain those who are not authorized to work in the U.S. So, employers are supposed to follow immigration law. But the California Legislature does not want employers to follow it too hard, you know?
This year's disincentive for employers to follow immigration law is called AB 1001 (here). It will be Labor Code section 1019.1.
First, this law provides it is unlawful for an employer, while doing its duty under federal immigration law, to
(1) Request more or different documents than are required under Section 1324a(b) of Title 8 of the United States Code.So, that means that the employer is limited to asking for what the I-9 authorizes. So far so good. Employers should be doing that anyway.
Second, the law makes it illegal for an employer to:
(2) Refuse to honor documents tendered that on their face reasonably appear to be genuine or
(3) Refuse to honor documents or work authorization based upon the specific status or term of status that accompanies the authorization to work.Who gets to decide what "reasonably appears to be genuine"? And what does (3) even mean? We should call a lawyer! Anyway, this section will create an incentive for employers to let false documents pass. Of course, if a federal I-9 audit reveals the employer should have caught the false documentation, well that's not part of the calculus.
Third, if an employer learns that someone has falsified information or is illegal to work, or if the authorization documents expire, employers are supposed to re-verify authorization, no? Not so fast, employers. It's now illegal for an employer to
(4) Attempt to reinvestigate or reverify an incumbent employee’s authorization to work using an unfair immigration-related practice.
Ok, I'll bite: What's an "unfair immigration-related practice" and how does one know she is engaging in that practice?
So, what are the consequences for violating section 1019.1?
- an applicant or a representative of the applicant, such a union, presumably, can file a complaint with the Labor Commissioner;
- The Labor Commissioner can make an order of "equitable relief." Yes, back pay is a form of equitable relief. So is reinstatement.
- AND, the Labor Commissioner can assess a penalty of up to $10,000.
So, employers must ensure they are complying with the I-9 rules to the letter. Deviations regarding documentation and re verification can lead to heavy financial penalties under state law, in addition to penalties possible under federal law for being too lax.
Yikes.
