Cal-Peculiarities: How California Employment Law is Different 2022 Edition

130 | 2022 Cal-Peculiarities ©2022 Seyfarth Shaw LLP  www.seyfarth.com  Unless an immigration enforcement agent provides a “judicial warrant,” California employers must not voluntarily consent to having the agent “enter any nonpublic areas of a place of labor. ” 486  Absent a “subpoena or judicial warrant,” or a notice of inspection of I-9 Forms, California employers must not voluntarily consent to an immigration enforcement agent obtaining access to “the employer’s employee records. ” 487  California employers must notify current employees, by posting, of “any inspections of I-9 Employment Eligibility Verification forms or other employment records conducted by an immigration agency within 72 hours of receiving notice of the inspection,” and must give affected employees a copy of I-9 inspection result s. 488  California employers must not, except as federal law requires, re-verify the employment eligibility of any employe e. 489 These California challenges to federal supremacy sparked a response. In 2018 the U.S. Justice Department sued California in federal court to seek a preliminary injunction against the enforcement of California statutes addressing immigration issues . 490 A federal district court largely denied preliminary relief to the U.S. government but did grant a preliminary injunction against three provisions of California law: Under that injunction, California could not enforce enactments that prevent employers from (1) giving immigration enforcement officials employment or payroll records without a judicial warrant (except for Form I-9 audits), (2) re-verifying employee I-9 Forms (unless required by federal law), and (3) giving immigration enforcement officials warrantless access to the non-public areas of the employer’s business . 491 Meanwhile, California added a new immigrant protection: no party can disclose an individual’s immigration status in open court, unless the party first persuades a judge in a private hearing that the evidence is relevant and admissibl e. 492 5.18 Employer’s Attorney-Client Privilege In America generally, an employer can secure a confidential written opinion from an outside law firm and have the firm interview the employer’s employees to learn facts needed to prepare the opinion, all without the fear that later, in litigation, the employer’s legal adversaries can discover what facts the law firm relied upon in rendering its legal advice. That principle applies in California, too, but only because the California Supreme Court granted extraordinary relief to correct the errors of two levels of lower courts. In one wage and hour class action challenging the classification of managers as exempt from overtime pay, the Court of Appeal ruled that it would not disturb a trial-court order that the defendant must turn over to a discovery referee an opinion letter that the defendant had secured from a law firm, for the purpose of having the referee redact out and reveal to the plaintiffs the “facts” that the law firm had relied upon in rendering its legal advice. The California Supreme Court eventually issued a ringing endorsement of the attorney-client privilege, recognizing that confidential attorney-client communications are protected from discovery in their entirety, regardless of whether the facts contained therein are otherwise discoverable, and that courts cannot compel parties to submit documents to in camera review to determine whether the communication is privileged . 493 5.19 Limits to Protection for Attorney Work Product Employers defending lawsuits often have defense counsel interview witnesses to investigate the plaintiff’s claims. The plaintiff’s counsel then asks the defendant employer, during pre-trial discovery, to serve up on silver platter the fruits of the defense counsel’s investigation. In a 2012 case, Coito v. Superior Court (State of California) , the