In her press conference in Los Angeles last week, Secretary of Homeland Security Kristi Noem reiterated their intent to remain in our city. The federal courts continue to debate President Trump‘s ability to federalize the National Guard and send military personnel to Los Angeles, above the protestations of Governor Newsom.
Exceptions to Reporting Time Pay – Until all of this is resolved, Mayor Karen Bass has placed a curfew on portions of downtown Los Angeles from 8p to 6am. This may impact those of you with operations in DTLA and even some surrounding areas. What does that mean for you as employers? California law requires that if an employee shows up but is sent home early from work, they must be paid half of the regularly scheduled shift, no less than two hours and no more than four. However, there are important exceptions to the reporting time rule. For example, Acts of God and other natural disasters, such as fires and earthquakes, or utility failures are considered such exceptions. But there is also an exception “(w)hen operations cannot begin or continue due to threats to employees or property, or when civil authorities recommend that work not begin or continue.” That is the case here.
Further, unless you are under a specific industry or local ordinance, or governed by a collective bargaining agreement, we do not yet require predictive scheduling in California. It may be coming, but it is not yet state law. Most of you can therefore change the schedule for your employees prospectively as business needs demand.
Conflicting Messaging on Immigration Agenda – Over the weekend President Trump published a statement that he was rolling back immigration enforcement on farm workers, as well as employees in the hospitality industry. But I have seen nothing official on this apparent change in direction, and since then, he has reconfirmed his commitment to targeting Los Angeles. In the meantime, other related businesses remain at risk regardless, as well as our individual employees when they are out and about on their own. We all need to remain vigilant.
Recent Reports of ICE Activity – At least as of now, I have yet to receive a report from any of my clients that they have experienced any true ICE “raids.” I put that in quotes, because I have spoken to clients and others who have seen ICE agents in their vicinity, either on the street or nearby parking lots. I did have one report from a client indicating that two plain-clothed gentlemen took a tour of their facility, and afterwards, asked casually if they had all their I-9 documents. An assistant manager was called who responded that the documentation was kept at the corporate office. The men left without incident, and the company has not heard officially from ICE or DHS. We have no way of knowing if this was a true visit from ICE, or just some people trying to be jerks. We sadly know from the deadly incident in Minnesota over the weekend that there have been people impersonating law-enforcement.
Considering all of this, I want to confirm a few points from prior articles and address the issue of document maintenance.
Know Your Rights – First, if anyone approaches you, any one of your employees, or your business, and identifies themselves as law-enforcement, you have the right to see identification and a badge or official card. You should also ask for a name and badge number.
Documenting Leased Employees – Second, it is fine if you maintain all the I-9 and other personnel documentation in a corporate office. However, I have been asked about retaining copies of I-9 forms for leased, temporary, or staffing employees. I recently wrote an article about using staffing agencies, reminding you all about the rule of joint employment in California. These staffed or temporary employees are still very much your workers, and the responsibility to document their identity and work status is not something you can delegate. If ICE or DHS appears and asks for I-9s on “all your employees,” they will want to see that documentation for all the workers on your premises, regardless of who issues their paychecks.
Under normal business circumstances, ICE would politely appear at your door and provide you with a Notice of Inspection. Then you would have several days in which to compile this documentation and presumably receive copies from the staffing agencies in order to comply. These are not normal times. We have already seen ICE descend on local small businesses and seize their records on the spot. I don’t want any of you having to reason with 30 armed agents, trying to explain why you have 100 workers on site but only five I-9s in your files. Let’s ask your staffing companies to provide you copies of these forms to have on hand. Just in case.
Finally, let’s all continue to keep abreast of the local ICE activity and share what we know. Over the weekend, I have learned from several sources that ICE has been visiting local parks and abducting nannies, nannies who were watching children at the time. I have heard it confirmed in parts of West Los Angeles. Please, for those of you who have domestic employees as well, be careful in these coming weeks.
And for those of you who have continued to communicate with me on these issues over the past week, thank you. As I have said, we are better with more information. I will try to keep you apprised about what I learn. As always, reach out if you need. Occasional anesthesia notwithstanding, I’m generally reachable.
