California employers caught between feds and state on immigration

If immigration authorities decide to raid Pancake Circus, the popular diner on Broadway in Sacramento, they will likely find the proprietor willing to grant their demands for access and information.

“I would cooperate,” said owner Naren Muni, standing at the register on a busy Monday between breakfast and lunch as two cooks worked in an open kitchen and waitresses bustled between the brown vinyl booths. “I don’t break the law.”

But by cooperating, Muni would be breaking the law – a new one enacted by the state to protect immigrants as it seeks to bolster its stance as a sanctuary for undocumented residents.

Like many business owners, Muni has heard of the new Immigrant Worker Protection Act (AB 450), which went into effect Jan. 1 and changes how he’s supposed to handle an enforcement visit by federal agents. But he’s not clear on the details or the additional responsibilities he now has to protect the privacy of his workers – requirements that could cost him thousands of dollars in penalties for violations.

Across town at Son of a Bean coffee shop on Del Paso Boulevard, owner Mike Chaves is similarly uninformed.

“I guess I should be more aware of it,” Chaves said after hearing about the law. “I didn’t know that.”

The new law requires employers to demand that immigration agents present a warrant or subpoena before entering parts of a workplace not open to the public or accessing some employee records. It also mandates employers provide notice to workers if there is a federal request to examine I-9 forms, which employees fill out to verify their eligibility to work in the United States, and inform workers promptly if the review of those documents turns up any problems.

“People are just starting to get wind of this new law,” said Erika Frank, general counsel for statewide business advocates CalChamber. “I don’t think they are very aware at all.”

Aware or not, California employers are on the hook if they get compliance wrong. Last week, state Attorney General Xavier Becerra warned employers that he planned on enforcing the law with civil penalties, which can range from $2,000 up to $10,000 for repeat offenses.

“Be aware of this new law because ignorance of the law is no excuse,” Becerra said in an interview with The Sacramento Bee.

The issue puts employers on the front line of the escalating battle between the Trump administration and California. The acting director of U.S. Immigration and Customs Enforcement, Thomas Homan, has said his agency plans increased enforcement in California because of its declared status as a sanctuary state. The San Francisco Chronicle reported last week that the agency was planning a large raid in Northern California.

While those massive crackdowns haven’t yet materialized, immigration authorities did raid nearly 100 7-Eleven stores across the country earlier this month, including some in Northern California, increasing the fear of workplace enforcement.

“Today’s actions send a strong message to U.S. businesses that hire and employ an illegal workforce: ICE will enforce the law, and if you are found to be breaking the law, you will be held accountable,” said Homan in a statement the day of those raids.

Los Angeles-based immigration lawyer Angelo Paparelli said the new California law “creates a dilemma for employers” like Muni who are uncertain of the lines between federal and state authority.

Muni said he didn’t know, for example – and wasn’t sure it was true – that the state now mandates he can’t voluntarily cooperate with immigration.

“I don’t think they can do that,” Muni said of California’s tough stance. “Federal law trumps state.”

Paparelli said many employers are confused, in part because he thinks the law is unclear. He points out that immigration authorities can deliver “administrative subpoenas,” which may look like legal documents but are not issued by courts. Navigating nuances like that may be tough for a manager or owner faced with armed agents carrying official papers.

“It creates a real dilemma for employers,” Paparelli said. “They obviously don’t want to flout the instructions of federal immigration enforcement agents, but on the other hand, they don’t want to break California law and be subjected to fines and who knows what sort of brand damage once an issue like this becomes publicized.”

Frank said she has also seen employers working to define the lines between state and federal powers.

“There are always laws that are a little bit more surprising to employers than others. I think this is one that perhaps has taken some employers by surprise because there are federal overlays to it and it’s one they are concerned about,” Frank said. “Businesses are going to be fearful when any government agency comes knocking on their door. … With this, they have to be aware that state law requires certain things to happen before a federal agent in this certain situation can do anything.”

Becerra urged employers to use “common sense” when interpreting the law.

“It’s not so much whether federal law trumps state law. It’s the constitution trumps everything else,” Becerra said, citing Fourth Amendment protections against unreasonable searches and seizures as the basis for California’s position.

“Think sensibly about the situation. If you are confronted by any enforcement authority, what are your rights and what are the rights of your workers?” Becerra said. “Everyone knows that you can’t just have someone barge into your premises and say, ‘I’m going to take a look at what you’ve got.’ There has to be a basis for it.”

Becerra said his office intended to issue more comprehensive guidelines later this week.

For Muni, he said he plans on finding out the rules – and following them – for himself.

“I don’t expect the state to send me the information,” he said. “I should know what the law is, right?”

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