Privacy Issues in the Community College Workplace

With respect to the subpoena or court order to access, review, or obtain employee records, the provision on penalties does not apply if a court determines that the immigration enforcement agent was permitted to access, review or obtain the employer’s employee records without the consent of the employer or other person in control of the labor. 358 In addition, the law does not prohibit an employer from challenging the validity of a subpoena or judicial warrant in a federal district court. 359 The requirement of a subpoena or judicial warrant also does not apply to I-9 Employment Eligibility Verification forms and other documents for which a Notice of Inspection has been provided to the employer. 360 With respect to the Notice of Inspection and posting requirements, “except as otherwise required by federal law,” the employer must provide notice to each current employee of any inspections of I-9 Employment Eligibility Verification forms or other employment records conducted by an immigration agency. 361 The employer must give this notice “within 72 hours of receiving the notice of inspection” from the immigration agency, and the employer’s notice to the current employees must be posted “in the language the employer normally uses to communicate employment-related information to the employee.” 362 The employer must also give written notice “within 72 hours” to the employee’s authorized representative, if any. 363 The posted notice must contain the following:

 The name of the immigration agency conducting the inspections of I-9 Employment Eligibility Verification forms or other employment records.

 The date that the employer received the notice of inspection.

 The nature of the inspection to the extent known.

 A copy of the Notice of Inspection of I-9 Employment Eligibility Verification forms for the inspection to be conducted. 364

The California Labor Commissioner will be developing a template for posting that employers may use to comply with the requirements of notifying employees of an inspection of I-9 Employment Eligibility Verification forms or other employment records by an immigration agency. 365 The template will be posted on the California Labor Commissioner’s Internet Web site.

In addition to providing current employees with written notice of the inspection, the employer must:

 Upon reasonable request, provide an affected employee with a copy of the Notice of Inspection of I-9 Employment Eligibility Verification forms. 366  Except as otherwise provided by federal law, provide each current affected employee and the employee’s authorized representative (if any) with a copy of the following:  The results of the I-9 Employment Eligibility Verification forms or other employment records within 72 hours of receiving it 367

Privacy Issues in the Community College Workplace ©2021 (c) Liebert Cassidy Whitmore 111