Privacy Issues in the Community College Workplace

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. 354 This last exception only applies provided no consent to search non-public areas is given in the process. 355 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. 356 In addition, the law does not prohibit an employer from challenging the validity of a subpoena or judicial warrant in a federal district court. 357 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. 358 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. 359 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.” 360 The employer must also give written notice “within 72 hours” to the employee’s authorized representative, if any. 361 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. 362

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. 363 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. 364

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