In the United States, federal law prohibits employers from hiring people who do not have the legal right to work in the country. This includes those without a valid social security number or those who cannot provide documentation proving their right to work. However, California immigration laws have been developed with a more compassionate perspective towards undocumented immigrants, offering certain rights and protections.
Some of the rights and protections that California immigration laws offer to undocumented immigrants are:
- The right to work without discrimination, harassment, or retaliation based on immigration status, national origin, ancestry, or language;
- The right to receive basic due process and information about their rights if federal immigration authorities seek to contact them while they are in local law enforcement custody;
- The right to access higher education, health care, and other public benefits regardless of immigration status;
- The right to be free from bias-motivated violence and human trafficking; and
- The right to challenge unjust deportations and seek legal relief.
Still, without proper work authorization, hiring undocumented workers in California remains illegal.
Can Immigration and Customs Enforcement Raid My Place of Business?
Yes, Immigration and Customs Enforcement (ICE) can raid businesses if they suspect that undocumented workers are employed there. Business owners should be aware that federal authorities have the right to inspect employment records to ensure that all workers have the legal right to work in the United States.
What Happens During an ICE Raid?
When ICE conducts a raid at a place of business, it can be a stressful and intense process for both the employer and the employees.
Here’s a general overview of what happens:
- Preparation: Before a raid, ICE typically conducts investigations, collects intelligence, and possibly secures a search warrant. However, in some instances, they may not have a warrant but instead have an administrative order.
- Entry: If ICE has a warrant, they can enter the premises without the employer’s permission. Without a warrant, they might request the employer’s consent to enter, or they may be restricted to public areas of the business.
- Detainment: During the raid, officers can question employees about their immigration status. They might separate workers based on their answers or apparent immigration status. However, it’s important to note that everyone, including undocumented immigrants, has certain constitutional rights. This includes the right to remain silent and the right to legal representation.
- Arrest: If ICE believes that an employee is in the country illegally, they can arrest and detain them. Often, those arrested will be transported to a detention facility where they’ll remain while their legal status is assessed.
- Review of Employment Records: ICE officers will inspect I-9 forms and other employment records. They may also interview key personnel, such as human resources managers, to gather more information about hiring practices.
- Issuance of Notices: After the raid, ICE may issue notices of potential fines to employers who are found to have knowingly employed undocumented workers. They may also issue a notice to appear in immigration court to the detained individuals.
- Potential Legal Proceedings: After the raid, legal proceedings can ensue. Detained individuals might face deportation proceedings, while employers could face civil and, in some cases, criminal charges if they are found to have knowingly violated immigration laws.
- Post-Raid Actions: Employers should consult with legal counsel after a raid to understand their rights and potential liabilities. Employees, especially those detained or those who fear detainment, should seek legal advice on their situation.
While these are general steps, each raid can differ based on the particular circumstances, the size of the business, and the information that ICE has prior to the raid.
What Are the Penalties for Hiring an Illegal Immigrant in California?
The penalties for hiring an illegal immigrant in California vary depending on the type and severity of the violation, but some of the possible penalties are:
- Criminal and/or civil fines ranging from $250 to $16,000 per illegal employee;
- Loss and/or suspension of business licenses;
- Damage to business’ reputation;
- Hiring and/or replacing of management personnel;
- A prison sentence of up to 10 years for harboring an illegal immigrant.
Employers in California are required to verify each employee’s work authorization by completing an I-9 form within 3 days of hiring an employee unless that employee is a contracted worker. An employer who does not comply with the I-9 form requirements may face both civil and criminal charges.
Additionally, a new California immigration law, the Immigrant Worker Protection Act (AB 450), provides California workers protection from immigration enforcement while they are on the job.
This law applies to all California employers, regardless of their size. Pursuant to AB 450, employers must comply with strict rules regarding when ICE may be given access to a worksite and/or employee records.
What if the Illegal Immigrant Used a False or Stolen Identity?
If an undocumented worker uses a false or stolen social security number or other identification to gain employment, they can face criminal charges for identity theft. On the employer’s side, if they had no knowledge of the false documentation and performed due diligence in their hiring process, they might avoid penalties.
However, if they were aware or did not follow proper verification procedures, they could face legal repercussions.
Are There Defenses for Hiring Illegal Immigrants Under California Laws?
Yes, there are defenses available for businesses accused of hiring undocumented workers.
Good Faith Defense
Employers can argue that they acted in good faith and took all the required steps to verify the employment eligibility of the individual in question. The employer must have properly completed, signed, and retained the Form I-9, Employment Eligibility Verification, for each employee.
Using the E-Verify system adds to this defense. E-Verify is an electronic system that cross-references the information employees provide on Form I-9 with federal databases to confirm employment eligibility. If an employer uses E-Verify and receives confirmation that an employee is authorized to work, they can argue they acted in good faith if the employee later turns out to be unauthorized.
This defense might not be available if the employer had explicit knowledge of the worker’s illegal status.
Unawareness of Employee’s Illegal Status
An employer can claim they were genuinely unaware that an employee was not authorized to work in the U.S., especially if the employee provided seemingly genuine documents.
Employers should demonstrate that they reviewed acceptable documentation (as listed on the back of the Form I-9) and reasonably believed the documentation to be genuine and to relate to the individual presenting them.
This defense can be challenged if there were obvious signs or red flags indicating that the documents were fake or did not belong to the employee.
False Documentation
If an employee provides false documentation that appears genuine, an employer might argue that they had no reason to suspect the individual was unauthorized to work.
The employer should have retained copies of the documents presented, ensuring they seemed genuine and valid at the time of hiring. Photocopies of the provided documents can be crucial in this defense.
Employers are not expected to be document experts. However, if the falsification was evident (e.g., a photo clearly not matching the employee or glaring typos in an official document), this defense may be weakened.
How Can a Business Protect Itself Against an Immigration Violation?
To protect itself from potential immigration violations, businesses should:
- Use the E-Verify system to confirm the eligibility of their employees;
- Regularly train HR personnel on the I-9 verification process;
- Maintain accurate and up-to-date records of all employee documentation;
- Consult with legal professionals to ensure they are in compliance with all California laws on hiring illegal immigrants.
Can I Report a Company for Hiring Illegal Immigrants?
Yes, you can report companies suspected of employing undocumented workers to ICE. Whistleblower protections may apply to those reporting, especially if they work for the company in question.
Do I Need a California Attorney to Help With My Employment of Illegal Aliens?
If you’re an employer facing potential legal issues related to the employment of undocumented workers or want to ensure you’re complying with all California immigration laws, consult with a California employment lawyer. They can offer guidance, representation, and ensure you understand all the nuances of the law.
Looking for professional guidance? Consult with a dedicated California employment lawyer through LegalMatch today.
