On September 8, the Supreme Court of the United States (“SCOTUS”) issued a decision on its “shadow docket,” essentially greenlighting racial profiling by immigration enforcement officers. In Noem v. Vasquez Perdomo, the Court ruled 6-3 granting the Department of Homeland Security (“DHS”) broader authority to conduct immigration enforcement operations, particularly in the Los Angeles area. This decision has immediate implications for employers in California, especially those operating in industries and geographic regions with large immigrant workforces. To adequately prepare for heightened immigration enforcement, employers should designate non-public areas of the workplace, properly train employees, implement comprehensive policies and protocols, and consult with legal counsel.

As we noted in June, California employers are subject to specific requirements under the California Immigrant Workers Protection Act (“CIWPA”), including prohibitions against voluntarily granting immigration officials access to personnel records or non-public areas of the workplace. The Noem decision has made compliance with these obligations more challenging by effectively expanding DHS’s authority to conduct workplace raids targeting undocumented individuals. In light of this development, employers should exercise heightened diligence to ensure they remain in full compliance with CIWPA.

Last Week's Noem v. Vasquez Perdomo Decision

The Fourth Amendment protects all people, regardless of citizenship status, from unreasonable searches and seizures by law enforcement or other government officials, requiring that there be probable cause to believe a crime was committed or is in process of being committed before a search or seizure can occur. However, in Terry v. Ohio, SCOTUS established a lower standard for more brief investigatory detentions, also referred to as “stop-and-frisk” or a “Terry stop.” These brief detentions can be made based on reasonable, articulable suspicion, which means that law enforcement can briefly detain people if they merely suspect a crime has been committed, so long as that suspicion is reasonable and individualized to the person stopped. Over the years, courts have held that race alone cannot constitute reasonable suspicion, as it violates the Fourth Amendment’s requirement of individualized justification for a stop or search. However, the Noem decision appears to have up-ended this long-standing precedent.

Specifically, in Noem, the plaintiffs filed suit alleging that immigration enforcement officers violated the Fourth Amendment by adopting a policy and practice of detaining individuals without reasonable suspicion, based primarily on race. The Government defended its policy by arguing that it was not relying solely on race, but rather was relying on four factors: (1) apparent race or ethnicity, (2) speaking Spanish or speaking English with an accent, (3) presence in a particular location, e.g., bus stop, car wash, etc., and (4) the type of work or occupation the person stopped does. The plaintiffs argued that these four factors, even when taken together, still essentially constituted illegal detentions based on race because most Spanish speakers are of Latinx descent and predominate in industries such as construction and landscaping, which cannot support reasonable suspicion of unlawful activity. In July 2025, the District Court for the Central District of California sided with plaintiffs and issued an order temporarily restraining immigration officers from making investigative stops in the Los Angeles area based on the four factors above, agreeing that these factors tread too close to detentions based on race.

The Government appealed, seeking to overturn the District Court’s restraining order preventing investigative stops. The Ninth Circuit sided with the District Court, after which the Government further appealed to SCOTUS. In a ruling from its “shadow docket” — meaning that SCOTUS did not invite briefing from the parties, did not hold oral argument, and did not issue a written opinion with analysis — SCOTUS stayed enforcement of the restraining order. This means that, at least for now, immigration officers will be able to satisfy the standard of reasonable suspicion to detain someone simply based on their race, the language they speak, where they are located, and what kind of job they have, and will proceed with their widespread immigration enforcement activities immediately.

As the dissent by Justice Sotomayor (joined by Justices Kagan and Jackson) notes, the ruling effectively legalizes racial profiling, upending established precedent that prohibited such action by law enforcement. “We should not have to live in a country where the Government can seize anyone who looks Latino, speaks Spanish, and appears to work a low wage job,” she wrote. She further emphasized the drastic impacts this decision will have, highlighting how the concurring opinion seemed to ignore the actual evidence in the record relating to excessive use of force and extensive unlawful detentions, even for U.S. citizens. For instance, in response to the decision, named Plaintiff Pedro Vasquez Perdomo issued a statement saying, “When ICE grabbed me, they never showed a warrant or explained why. I was treated like I didn’t matter–locked up, cold, hungry, and without a lawyer. Now, the Supreme Court says that’s okay? That’s not justice. That’s racism with a badge… I joined this case because what happened to me is happening to others everyday just for being brown, speaking Spanish, or standing on a corner looking for work… We’ll keep fighting because our lives are important.”

How Noem v. Vasquez Perdomo Affects California Employer Obligations

Regardless of DHS’ expanded enforcement powers, California employers are still currently obligated to comply with the CIWPA, which prohibits employers from giving voluntary consent to immigration enforcement authorities to enter or search non-public areas of the workplace, or to inspect employee personnel records¹.

Given the Noem decision, employers should take thoughtful and intentional steps to prepare their workforce and ensure compliance with the CIWPA. One major practical effect of the Noem decision is that immigration officers are likely to get bolder and more aggressive in their enforcement activities, making preparedness even more paramount. As such, employers should:

• Designate Public v. Non-Public Areas: Employers should designate non-public areas of the workplace by placing big, bold, and clear signage indicating that only authorized personnel are allowed in those areas. Employers might also consider creating additional badged or locked points of entry, while still taking care to comply with regular fire and safety standards. Despite this week’s ruling, immigration officers still need a judicial warrant or consent² to enter non-public areas of a workplace. Employers might also consider hiring and training security personnel if there is particularly heightened risk of enforcement activity in their workplace.
• Properly Train Employees: Employers should train managers, supervisors, executives, and security personnel on employer obligations under the CIWPA. Because the CIWPA prohibits employers from giving voluntary consent to immigration enforcement authorities to enter non-public areas of the workplace, training even for rank-and-file employees might be necessary if they are likely to be an initial point of contact with officers. Employers might also consider training employees on their Fourth and Fifth Amendment rights generally, the various types of warrants immigration officers may use, and provide practical advice on how to handle an interaction with immigration officers. This recommendation applies especially to employers with employees from communities commonly targeted by immigration officers, particularly after the Noem decision.
• Implement a Comprehensive Policy: Employers should implement a comprehensive policy that addresses the differences between public and non-public areas of their workplace, establishes protocols for employees to follow in the event immigration officers come to the workplace, creates a communication plan for notifying others that agents are on premises, designates representatives to handle interactions with law enforcement, and establishes post-incident procedures.

• Consult with Legal Counsel: Employers should consult with legal counsel to adequately prepare for heightened immigration enforcement in California, especially in “sanctuary” areas like Los Angeles and the Bay Area, or in heavily impacted regions like the Central Valley, where the Administration has hinted at expanded enforcement activities. Hanson Bridgett has developed a robust suite of resources to advise employers on issues of immigration enforcement in the workplace, and offers Quick Guides, FAQs, Employer Readiness Trainings, Know Your Rights Trainings, and can help with the drafting of policies and protocols³. All of these resources, including live trainings, are available in both English and Spanish.
   

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¹ The Trump Administration will almost certainly challenge the CIWPA on the grounds that it is preempted by federal law. Such a challenge has a reasonable likelihood of at least some success.  Until that time, the CIWPA does mandate obligations for employers. Even in the event that the CIWPA is held preempted, nothing prevents California employers from adopting the policies, protocols, and recommendations herein on a voluntary basis.

² Employees should be trained to never consent to immigration officers entering non-public areas of the workplace, unless there is an emergency circumstance like an encroaching fire or mass shooter. Even if the CIWPA is challenged by the Trump Administration, employers may choose to voluntarily adopt such a rule.

³ For more Hanson Bridgett resources on immigration compliance in the workplace, visit https://www.hansonbridgett.com/resources/immigration-workplace.