Trump Administration Sues CA

On Tuesday, the United States Department of Justice brought legal action against the State of California, Governor Jerry Brown, and Attorney General Xavier Becerra. U.S. Attorney General Jeff Sessions spoke in downtown Sacramento the next day, discussing California’s illegal immigration and formally announcing the lawsuit.

The preliminary statement of the Complaint claims that certain provisions of California law are preempted by federal law, and the U.S. seeks to invalidate and preliminarily and permanently enjoin enforcement of these provisions. The Complaint outlines each of the three specified laws as follows:

♦ The first statute, the “Immigrant Worker Protection Act,” Assembly Bill 450 (“AB 450”), prohibits private employers in California from voluntarily cooperating with federal officials who seek information relevant to immigration enforcement that occurs in places of employment. [See our article on AB 450 here for more information.]

♦ The second statute, Assembly Bill 103 (“AB 103”), creates an inspection and review scheme that requires the Attorney General of California to investigate the immigration enforcement efforts of federal agents.

♦ The third statue, Senate Bill 54 (“SB 54”), which includes the “California Values Act,” limits the ability of state and local law enforcement officers to provide the United States with basic information about individuals who are in their custody and are subject to federal immigration custody, or to transfer such individuals to federal immigration custody.

The U.S. claims that the above provisions of law “have the purpose and effect of making it more difficult for federal immigration officers to carry out their responsibilities in California” and that the Supremacy Clause of the Constitution does not allow states to obstruct the United States’ ability to enforce laws enacted by Congress or to take actions entrusted to it by the Constitution. The Supremacy Clause essentially declares the laws enacted at the federal level as superior to anything enacted by the individual states that is contrary to that federal law.

The U.S. asserts that it has undoubted, preeminent authority to regulate immigration matters derived from the Constitution and other acts of Congress, stating that California does not have the authority to enact laws that stand as obstacles to the accomplishment and execution of the full purposes and objectives of Congress. The Complaint goes on to cite several other laws and regulations to support its claims against California. As this suit continues, we will provide additional information of its status and consequential implications on California employers.

DOL Introduces New Self-Audit Program

Also on Tuesday, the United States Department of Labor (“DOL”) announced its new pilot program, the Payroll Audit Independent Determination (“PAID”) program. The Hill reported in this article that the PAID program “will ensure that more employees receive the wages they are owed faster.” With the PAID program, employers conduct audits of their own operations, attempting to identify any potential overtime or minimum wage violations under the Fair Labor Standards Act. If potential violations are discovered, the employer must identify the specific violations, identify the employees affected, identify the timeframes in which each employee was affected, and calculate the amount of back wages they believe are owed to employees.

Employers will then take this information and contact the Wage and Hour Department (“WHD”) to discuss the resolution of the violations. WHD will either deny the employer’s request to participate in the program (employers cannot participate if currently under investigation or seeking litigation for the violations at issue or if WHD determines they are acting in bad faith) or will inform the employer of the manner in which to submit additional information. WHD will evaluate the information and then contact the employer to discuss how they will proceed.

If WHD determines back wages are due, it will issue a summary of unpaid wages to the employer, as well as forms describing settlement terms for each employee. Employees may sign these forms to receive payment; however, they are not required to do so and may seek further legal action. Upon receipt of the signed settlement forms, and by the end of the next full pay period, employers are responsible for issuing prompt payment and providing proof of payment to WHD.

Though this new program may provide an avenue for employers to avoid federal investigations and/or costly litigation (the WHD has stated that it will not require the additional payment of liquidated damages or civil monetary penalties when employers choose to participate in good faith), it is just beginning the pilot stage, and, for the next six months, the WHD will be evaluating its effectiveness, potential modifications, and whether to implement it permanently. It is important to note that this program does not protect against claims at the state level. We will keep you updated on the benefits and disadvantages of this program as it develops.

For more information on the program, see the DOL’s PAID webpage hereBefore deciding whether your company should take advantage of this program, it is absolutely critical that you confer first with experienced employment counsel.

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