July 31, 2018 Practice Points

Employment Rights and Obligations in the Era of Sanctuary Jurisdictions

Employment Rights and Obligations in the Era of Sanctuary Jurisdictions

By David Gevertz and Megan Quinn – July 31, 2018

President Trump has made good on some of his campaign promises by making immigration a major focus of his presidency. Over his first two years in the Oval Office, he has steadily rolled out policies and made statements regarding Mexican immigrants, travel bans for individuals from specific countries, the Deferred Action for Childhood Arrivals (DACA), and the deportation of unauthorized immigrants. In reaction, various jurisdictions have voiced their opposition by proclaiming themselves to be "sanctuaries." This catch-all term describes jurisdictions that chose to not cooperate with federal immigration enforcement in some way. As each jurisdiction enacts policies and laws to support its sanctuary label, some of those undertakings will invariably concentrate on the employment sector.

One such law is California's Immigration Workers Protection Act, which went into effect in January 2018. Assembly Bill No. 450 (Ca. 2017). This law places restrictions on private employers cooperating with federal immigration authorities, and violating this law could cost the employer up to $10,000 per violation. Unsurprisingly, the federal Department of Justice (DOJ) immediately challenged the California law.

On July 4, 2018, Judge John Mendez of the U.S. District Court for the Eastern District of California granted a preliminary injunction preventing California from enforcing certain provisions of the act. Order Re: The United States of America's Motion for Preliminary Injunction, United States v. California, No. 2:18-cv-490 (E.D. Ca. July 4, 2018). The order enjoined the provisions prohibiting employers from sharing confidential employee information with federal authorities in the absence of a subpoena, allowing federal authorities onto a worksite without a warrant, and re-verifying information on an employment verification form without being compelled to do so by federal law. Judge Mendez did not completely enjoin the act, meaning that employers are still required to notify employees and their union, where applicable, within 72 hours of receiving notice of a federal I-9 audit and/or a U.S. Immigration and Customs Enforcement (ICE) site visit.

Meanwhile in Washington, D.C., a district councilman proposed an amendment to D.C.'s extortion statute. Under the proposed amendment, it would be a crime for a person, including employers, to report or threaten to report another person for being an unauthorized immigrant to obtain that person's property, labor, or services.

The final fates of the Immigration Workers Protection Act and the proposed D.C. amendment are unknown. However, what is clear is that sanctuary jurisdictions are not going away anytime soon. On July 27, 2018, Judge Harry Leinenweber of the U.S. District Court for the Northern District of Illinois issued an opinion declaring 8 U.S.C. § 1373 unconstitutional. That provision states that no state or local government entity can prohibit any government entity or official from sending information regarding an individual's citizenship or immigration status to the Immigration and Naturalization Service, 8 U.S.C. § 1373(a), and the DOJ has used this law as a cornerstone of its challenges to sanctuary laws. Thus, as sanctuary jurisdictions continue to enact laws protecting immigrants and the DOJ continues to challenge them, employers and employment attorneys will need to stay abreast of these developments, as the enforceable laws may change from month to month.

 

David Gevertz and Megan Quinn are with Baker Donelson in Atlanta, Georgia.


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