California’s Know Your Rights laws go into effect Feb. 1 and apply to all employers.
Restaurant employers across the country have been attempting to educate workers about their rights to protect them in light of the ongoing immigration crackdown. In California, starting Feb. 1, that “know your rights” education will be required by law.
The new Workplace Know Your Rights Act is scheduled to go into effect on Sunday, and will be required every year going forward. It adds to the responsibilities employers have to ensure their worker are aware of certain workplace protections, including what they should do if threatened with arrest or detention.
Under the law, notice must be given in writing to all new employees when they are hired, as well as all existing workers annually. The written notification can be digital, like a text or email.
However employers decide to do it, attorney Heather Irwin, a partner with Gordon Rees Scully Mansukhani, recommends that restaurants ask workers to sign off on having received the notification, in part because many restaurants don’t have an internal communications channel and texts and emails can be missed.
The sign-off is not part of the law, but “because of the uniqueness of restaurants and how they’re run, not having an electronic record, there should be some way for employers to show they’ve given it to people,” she said.
In July, the state labor commissioner’s office is expected to offer a video for employees to watch, with the same information, which could be incorporated in training or onboarding, she said.
Another video will offer similar training for employers on how they can comply, Irwin said.
Here’s what employers need to know:
Emergency contact. California employers must allow employees to designate an emergency contact in case the worker is arrested or detained. That person might not necessarily be the same as the overall emergency contact, typically a spouse or family member. For this, employees have until March 30 to designate a contact.
Also new under the law: In the event that a worker is arrested or detained during work hours or during the performance of work duties, employers must notify that designated emergency contact.
Immigration inspections. If an employer receives notice of an upcoming immigration agency inspection of I-9 forms or other employment records, the employer must inform workers and their union representatives within 72 hours of receiving that notice.
Protection from immigration-related threats. Workers must be notified that it is unlawful for employers to retaliate against them or threaten immigration-related action when they exercise their rights.
Employers cannot refuse to accept identification documentation during the I-9 process that appears to be genuine.
In addition, workers should know that employers cannot use the E-Verify system to determine employment eligibility for only some workers, and not all, without a legitimate basis.
Unreasonable search and seizure. The notification outlines protections under the 4th Amendment of the U.S. Constitution, which apply regardless of immigration status.
Law enforcement can enter public areas of a restaurant without a warrant, including the lobby, waiting room, public dining areas or parking lot, for example. But in most circumstances, law enforcement needs a judicial warrant, signed by a judge, to enter non-public areas of the workplace without consent, including break rooms, restrooms, or other workspaces designated for employees only.
In California, employers are prohibited from giving voluntary consent to an immigration enforcement agent to enter private areas without a proper warrant.
Law enforcement must have reasonable suspicion of wrongdoing before they can stop and question or search someone. Workers should know they can ask if they are being detained, or ask “Am I free to leave?” If the officer says they are not being detained, they can walk away.
If they are arrested, workers should also know of their right to speak to a lawyer, along with other Miranda rights, and that they don’t have to sign any documents without speaking to an attorney.
The California Department of Industrial Relations offers a template of the required notification in English and several other languages.
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Lisa Jennings is a veteran restaurant industry reporter and editor who covers the fast-casual sector, independent restaurants and emerging chain concepts.