Privacy Issues in the Workplace

 Enter non-public areas of the worksite, unless the immigration enforcement agent provides a judicial warrant 376  Access, review, or obtain employee records without a subpoena or court order. 377

An employer will be subject to penalties for violating each of these provisions. The penalties are civil penalty of two thousand dollars up to five thousand dollars for a first violation, and five thousand dollars up to ten thousand dollars for each subsequent violation. 378 A violation is “each incident” where it is found that a violation occurred “without reference to the number of employees, the number of immigration enforcement agents involved in the incident, or the number of locations affected in a day.” 379 There are exceptions to each of these prohibitions. With respect to the prohibition against voluntary consent to enter non-public areas of the worksite, the provision on penalties does not apply if a court determines that the immigrant enforcement official entered the non-public area without consent of the employer or the other person in charge of the workplace. 380 In addition, the employer or a person acting of the employer’s behalf is not precluded from taking the immigration enforcement officer to a non-public area where employees are not present for the purpose of verifying whether the agent has a judicial warrant. 381 This last exception only applies provided no consent to search non-public areas is given in the process. 382 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. 383 In addition, the law does not prohibit an employer from challenging the validity of a subpoena or judicial warrant in a federal district court. 384 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. 385 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. 386 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.” 387 The employer must also give written notice “within 72 hours” to the employee’s authorized representative, if any. 388 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.

Privacy Issues in the Workplace ©2019 (s) Liebert Cassidy Whitmore 112