The State of Oregon has passed SB 370 which, effective January 1, 2020,will require that employers notify their employees of any notice of inspection by a federal agency of the records, forms and other documentation associated with the verification of identify and eligibility to work in the U.S.
Timing for employee notification: 3 days of receipt of notice of inspection
Employers must provide such notice within 3 days of receipt of the notice (for example, if the notice is received on a Monday, the notice must be provided no later than COB Thursday).
Employers must provide notice through:
- Posting a notice in a conspicuous and accessible location, in English and in the language the employer typically uses to communicate with the employees; and
- Making reasonable attempts to individually distribute notifications to employees in the employee’s preferred language
Notice must consist of:
- A copy of the federal agency’s notice of inspection received by the employer; and
- The date of the inspection; and
- To the extent the employer knows, the scope of the federal agency’s inspection; and
- The employer’s obligations with respect to providing information within the scope of the federal agency’s notice of inspection; and
- A telephone number, prescribed by the Bureau of Labor and Industries, for a hotline operated by an organization that provides information and advocacy related to immigrant and refugee workers’ rights
The Oregon Bureau of Labor and Industries will provide a template for employers to use to satisfy the notice requirements above, and this template will be provided in the 5 most popular languages spoken in the state besides English, which, according the United States Census Bureau, includes Spanish, Chinese, Vietnamese, German and Russian.
For employers outside of Oregon:
The state of California enacted AB450, the Immigrant Worker Protection Act on January 1, 2018 which requires similar notice to employees in the event of an inspection of Form I-9 records as well as the obligation to notify employees of the result of such inspection. The existence of this notice requirement in California , and now Oregon, does not necessarily mean that other states will follow suit. However, we often advise our clients to notify employees of a government review of Form I-9 records to get ahead of the rumor mill and set expectations for employees if they are asked to correct their I-9, participate in interviews or perform any other action in support of compliance with the federal inspection.
The definition of “employee” excludes independent contractors, however, for many reasons, including compliance with this notice requirement, it is important for employers to ensure proper classification of their independent contractors.