By Elizabeth Aguilera | CALmatters
Growing tension between California and the federal government over immigration has business owners in the crosshairs, worried about the potential effect on their enterprises and unsure which laws they should follow.
Those in immigrant-dependent industries, such as hospitality and agriculture, say conflicting messages from the state, with its new laws to protect undocumented residents, and the federal government, which is cracking down on people in the U.S. illegally, puts them in an especially tough spot.
“It’s a bit scary to be caught in the middle of a stand-off between the feds and local law enforcement,” said Sharokina Shams, spokeswoman for the California Restaurant Association.
On Jan. 2, the interim director of Immigration and Customs Enforcement said California should “hold on tight,” because he planned to send in a flood of agents and conduct more actions to counter the state’s new “sanctuary” law. That law, which took effect Jan. 1, limits local and state law enforcement agencies’ cooperation with federal authorities.
ICE also recently raided nearly 100 7-Eleven franchises across the country and arrested 21 people. If that happened in California, the store owners would be required under a separate law to request warrants and subpoenas.
That law, called the Immigrant Worker Protection Act, also went into effect Jan. 1. It requires that employers admit immigration officials to a worksite only if the agents have a warrant; keep workers’ confidential information private in the absence of a subpoena; and notify their workers before a federal audit of employee records takes place.
State Attorney General Xavier Becerra announced on Jan. 18 that his office would go after employers who share information about workers in contradiction of the new law and they could face prosecution, including fines of up to $10,000.
“We want to protect people’s rights to privacy and protect their ability to go about their business, going to work and feeding their kids,” said Becerra, an appointee who is running for election to his post this year.
He said his announcement was prompted by rumors in Northern California that immigration agents intend to conduct workplace raids.
Immigration and Customs Enforcement says employers in California are expected to comply with federal regulations, as they have in the past, when asked to open their records for review.
The Immigrant Worker Protection Act “reflects yet another effort by the State of California to interfere with federal immigration enforcement authorities,” Lori Haley, spokeswoman for ICE, told CALmatters in an email. “Federal law established by the Immigration Reform and Control Act (IRCA) of 1986 requires employers to verify the identity and work eligibility of all individuals they hire.”
Such audits protect jobs for citizens and others who are in the country legally and help battle worker exploitation, child labor and other illegal practices, Haley said.
California business owners shouldn’t be put at odds with the federal government, said GOP Assemblyman Travis Allen, who represents Huntington Beach.
“Business owners should always feel safe to cooperate with federal authorities without fear of persecution by California’s rogue attorney general,” said Allen, who is running for governor. “Business owners should never be used as pawns in the California Democrats’ ongoing war with the White House.”
He called the new law unconstitutional and likened Becerra’s threat to the Mafia silencing witnesses.
The Constitution has “laid out clearly that immigration is federal, not state jurisdiction,” Allen said. “Federal law trumps state law and Xavier Becerra knows this.”
The California Farm Bureau Federation, which represents farmers, has been reaching out to its 27,000 members to educate them about the new employer law. But officials there say they may not be able to reach everyone and worry that some may get caught unaware.
“It was a little disconcerting that the attorney general felt compelled to make a public statement to the effect that ‘we are going to fine anybody that we think might have violated the law at the max penalty’ when people make mistakes,” said Bryan Little, director of employment policy for the federation. “It would have been more helpful for the attorney general to be more informative.”
Typically, Little said, when immigration authorities decide to do an employment inspection, an employer receives a letter stating that the agency wants to audit its records, how those records should be provided and whether agents plan to show up at the worksite.
That’s different from an enforcement action, when agents show up without warning to look for someone specific or to question all employees about their legal status—the kind of operation that does not happen very often.
Regardless, said Little, California law adds a layer of complications.
“Our business owners, operators and employers are caught in the middle” between ICE’s right to enforce federal law and the state’s limited-cooperation directive, he said. “It’s unfortunate.”
In Los Angeles, restaurateur Patricia Perez, co-owner of Pho Show restaurants in Culver City and Redondo Beach, feels the pressure.
“Being in the hospitality industry, the whole social and political climate is worrisome,” she said. “Even before this, there is a lot to comply with. I don’t know what we would do.”
“The small business owner is the loser in this,” said Perez, who is also on the board of the Los Angeles Chapter of the California Restaurant Association.
Keeping up with new laws and regulations is hard enough, said Perez. Anytime a government agency shows up at a business for audits or information, employers and workers are nervous or even intimidated, and the new employment law doesn’t help, she said.
“It’s not an issue of transparency. Once a government agency asks for anything, it’s a feeling of not having a choice,” she said. “Business owners don’t always know their rights or what to do except to comply.”
California could be contradicting itself with the new employer law, according to Jonathan Turley, professor of public-interest law at George Washington University in Washington, DC.
The state weighed in on a 2012 case involving an Arizona law that required police to cooperate with immigration agents, Turley noted in a review of California’s new employer law. Kamala Harris, who was then California’s attorney general, signed a brief arguing that Arizona’s law improperly interfered with federal jurisdiction.
Today, California is putting business owners in the direct path of the federal government, Turley argues, and its law could be challenged based on its own position that states should not impede federal authority.
CALmatters.org is a nonprofit, nonpartisan media venture explaining California policies and politics.