The uptick in ICE investigations has Oregon requiring employers to notify employees of any upcoming investigation by a federal agency (such as a Form I-9 inspection) for records, forms, or other documentation used to verify employee identify and work authorization. Oregon follows California in taking this step.
Under Oregon’s statute, SB 370 (2019), employers must, within three business days of receiving a notice of any inspection:
- Post the notice in a conspicuous and accessible location, in English and in the language the employer typically uses to communicate with the employees; and
- Make reasonable attempts to individually distribute notifications to employees in the employees’ preferred language.
The notice must include:
- Copy of the notice of inspection;
- Date of the inspection;
- Scope of the inspection (if the employer has that information); and
- Telephone number of the Portland Immigrant Rights Coalition’s hotline so that employees can get information from an advocacy group regarding immigrant and refugee workers’ rights.
The Oregon Bureau of Labor and Industries (BOLI) has created a template notice in English, Korean, Russian, Spanish, and Vietnamese that meets these requirements. BOLI also created a Frequently Asked Questions (FAQs) document.
According to the FAQs, a “reasonable attempt” to provide individualized notice depends upon the circumstances. What is clear is that the purpose is to ensure that all employees see the notice in a timely fashion. Examples of modes of communication include, for example, email, paystubs (if they are going out within the three-day period), text messages with the documents attached, or a message to employees asking them to pick up the notice in the office. BOLI also clarified that the “individual distribution” is not solely for employees whose preferred language is not English – it is for all employees.
Under the Oregon statute, there is no penalty for failure to provide the notice. In California, on the other hand, employers may be liable for penalties of up to $5,000 for a first violation and up to $10,000 for subsequent violations.
Oregon enacted this legislation to give employees a “heads up” so they could prepare for any consequences that may result from the inspection.
Jackson Lewis attorneys are available to assist you in establishing a protocol to meet this new requirement and determining how to implement adequate notice.