BILL NUMBER: AB 2076 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 30, 2008
AMENDED IN ASSEMBLY APRIL 16, 2008
AMENDED IN ASSEMBLY APRIL 3, 2008
INTRODUCED BY Assembly Member Fuentes
FEBRUARY 19, 2008
An act to add Article 2.5 (commencing with Section 2811) to
Chapter 2 of Division 3 of the Labor Code, relating to employment.
LEGISLATIVE COUNSEL'S DIGEST
AB 2076, as amended, Fuentes. Employment: hiring practices:
electronic employment verification.
The E-Verify Program of the United States Department of Homeland
Security, in partnership with the United States Social Security
Administration, enables participating employers to use the program,
on a voluntary basis, to verify that the employees they hire are
authorized to work in the United States.
Various provisions of existing state and federal law prohibit
discrimination in employment on different bases, including, but not
limited to, the race, color, sex, religion, or marital status of a
person.
This bill would prohibit the State of California from
participating in any electronic employment verification system, as
defined, unless required by federal law. The bill would also prohibit
a city, county or municipality ,
city and county, or special district from requiring
any employer to use an electronic employment verification system.
Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. The Legislature finds and declares all of the
following:
(a) California relies on both its diverse workforce and its
employers to fuel the world's eighth largest economy. Currently, a
system of state and federal laws outline the procedures employers
must use to comply with immigration and labor laws, and most
employers practice due diligence in complying with these laws.
However, the federal government is premature in encouraging the use
of a voluntary electronic employment verification program that is
still plagued with deficiencies. The purpose of this program,
commonly known as E-Verify (enacted by Section 404 of Public Law
104-208), is to allow employers to electronically verify workers'
employment eligibility by accessing information in databases
maintained by the Department of Homeland Security (DHS) and the
Social Security Administration (SSA).
(b) E-Verify is often portrayed as a solution to curbing the
hiring of unauthorized workers, but the program has been plagued by
numerous problems since its inception in 1997. Reports and
evaluations commissioned by the former Immigration and Naturalization
Service in 2002, by the DHS and the Government Accountability Office
(GAO) in 2007, by the Congressional Budget Office, and the SSA's
Office of the Inspector General have found that E-Verify has
significant weaknesses, including:
(1) Reliance on outdated government databases that have
unacceptably high error rates. Within the SSA database there are 17.8
million discrepancies related to name, date of birth, or citizenship
status, with 71 percent of those discrepant records pertaining to
United States citizens.
(2) Employer misuse of the program to take adverse action against
workers. For instance, as often as 22 percent of the time, some
employers restrict work assignments of workers tentatively identified
as unconfirmed but who still have the right to contest the finding.
(3) Undue cost and fiscal burden to employers and localities.
E-Verify could cost private employers $136 million and local
governments $68 million per year.
(c) Employers enter into a memorandum of understanding (MOU) with
the federal government upon registering for E-Verify, yet there is no
enforcement mechanism or penalty associated with failure to comply
with the rules and procedures outlined in the MOU.
(d) In a hearing before the United States House of Representatives
Subcommittee on Ways and Means, expert testimony affirmed that the
high error rate of E-Verify affects all workers, but has a
disproportionate impact on lawful foreign-born workers who are 30
times more likely than native-born workers to be incorrectly
identified as not authorized for employment. Similarly, the 2007
evaluation commissioned by the DHS and the GAO found that
foreign-born United States citizens experience the most adverse
effects, with almost 10 percent initially being told that they are
not authorized to work (versus 0.1 percent for native-born United
States citizens).
(e) As of February 2008, less than one 1
percent of employers nationwide and a mere 0.3 percent of
employers in California are enrolled in the voluntary system.
Attempts at the federal level to increase the use of a program that
has not passed the basic litmus test of accuracy will make it even
more difficult for law-abiding employers to comply with labor and
discrimination laws and will expose many authorized workers and
United States citizens to unfair and discriminatory practices in the
workplace.
(f) Therefore, it is the intent of the Legislature that the State
of California not participate in the voluntary but flawed system and
send a strong signal to other states and employers that E-Verify
shall not be used or mandated while deficiencies within the system
persist.
SEC. 2. Article 2.5 (commencing with Section 2811) is added to
Chapter 2 of Division 3 of the Labor Code, to read:
Article 2.5. Electronic Employment Verification Systems
2811. (a) The State of California, as an employer, shall not
participate in any electronic employment verification system, unless
otherwise required by federal law.
(b) While recognizing that participation in the federal electronic
employment verification system, E-Verify, is voluntary, the State of
California discourages employers from participating in any
electronic employment verification system, unless required by federal
law, due to concerns with federal database error rates and the
discriminatory impact of the system.
(c) Counties and municipalities shall not
No city, county, city and county, or special district shall
require any employer to use an electronic employment verification
system, including, but not limited to, the following circumstances:
(1) As a condition of receiving a government contract.
(2) As a condition of applying for or maintaining a business
license.
(3) As a penalty for violating licensing or other similar laws.
2812. For purposes of this article, "electronic employment
verification system" means any employment verification system that
allows employers to electronically verify workers' employment
authorization with the federal government. This includes the Basic
Pilot Program, enacted by Section 404 of Public Law 104-208, renamed
in 2007 as the E-Verify Program, and other pilot programs for
electronic employment eligibility confirmation. The term "electronic
employment verification system" does not include the I-9 Employment
Eligibility Verification form or any other employment eligibility
systems that are required by federal law.