BILL ANALYSIS
AB 2076
Page A
Date of Hearing: April 23, 2008
ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT
Sandre Swanson, Chair
AB 2076 (Fuentes) - As Amended: April 16, 2008
SUBJECT : Employment: hiring practices
SUMMARY : Enacts provisions of law related to the use by
employers of specified federal electronic employment
verification systems. Specifically, this bill :
1 Defines an "electronic employment verification system" as any
employment verification system that allows employers to
electronically verify workers' employment authorization with
the federal government, including programs known as the "Basic
Pilot Program" or "E-Verify."
2)Prohibits the state, as an employer, from participating in any
electronic employment verification system, unless otherwise
required by federal law.
3)"Discourages" employers from participating in any electronic
employment verification system, unless otherwise required by
federal law, due to concerns with federal databse error rates
and the discriminatory impact of the system.
4)Prohibits counties or municipalities from requiring an
employer to use an electronic employment verification system,
including, but not limited to, the following circumstances:
a) As a condition of receiving a government contract.
b) As a condition of applying for or maintaining a business
license.
c) As a penalty for violating licensing or other similar
laws.
5)Makes related legislative findings and declarations.
FISCAL EFFECT : Unknown
COMMENTS : This bill is sponsored by the California Immigrant
Policy Center, who argues that it would curtail the use in
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California of an allegedly flawed federal system for identifying
the employment eligibility of workers.
Background on the Basic Pilot Program/"E-Verify" Program
The Basic Pilot Program is a voluntary Internet-based program
administered by the Department of Homeland Security (DHS). The
program allows employers to electronically verify workers'
employment eligibility by accessing information in databases
maintained by the Social Security Administration (SSA) and the
U.S. Citizenship and Immigration Services (USCIS).
The Immigration Reform and Control Act of 1986 (IRCA) made it
unlawful for employers in the United States to "knowingly" hire
workers who are not eligible to be employed in the U.S.
Employers who knowingly hire such workers are subject to
penalties, referred to as "employer sanctions." All employers
are also required to verify employees' work eligibility, using
an official government form called the "Employment Eligibility
Verification Form" or "I-9 form."
To enable employers to complete the form, workers are required
to produce documents proving their identity and employment
eligibility. Only certain documents, as set out in the law, may
be used for this purpose, and IRCA's antidiscrimination
provisions provide that it is the worker's choice which of the
acceptable documents to present. To comply with IRCA, the
employer has to certify on the I-9 form that the documents
presented by the employee reasonably appear to be genuine on
their face, and the employer must retain such information in its
files for three years after the employee's date of hire, or one
year after the date that the worker's employment is terminated,
whichever is later.
The Basic Pilot Program modifies these existing procedures by
also requiring the employer to submit an inquiry via computer to
SSA and USCIS regarding whether the information presented by the
individual matches records maintained by SSA and USCIS.
The Basic Pilot Program began as a pilot program created under
the federal Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (IIRIRA). The program began
operating in five states in 1997 and a sixth state in 1999. In
2003, Congress expanded the program to all 50 states and
authorized it until November 30, 2008 under the Basic Pilot
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Program Extension and Expansion Act of 2003. In August 2007,
DHS renamed the program "E-Verify."
In August 2007, DHS also announced plans to issue regulations
that would require new federal contractors and vendors to use
E-Verify. Currently, there are over 200,000 entities that have
contracts with the federal government. DHS also announced that
it would be modifying its own procurement manual to designate a
vendor's participation in E-Verify as a positive consideration
in determining who is awarded a contract with DHS.
Some critics of the program have argued that it has been
hindered by inaccurate and outdated information in the DHS and
SSA databases and misuse of the program by employers. The
National Immigration Law Center points to recent evaluations of
the programs that have demonstrated that "the database used for
verification is still not sufficiently up to the date to meet
the [Illegal Immigration Reform and Immigrant Responsibility
Act] requirements for accurate verification<1>. Specific
findings from these reports included the following:
Approximately 17.8 million of SSA's records contain
discrepancies related to name, date of birth, or
citizenship status.
Due to database errors, foreign-born workers
(including those who have become U.S. citizens) are 30
times more likely to be incorrectly-identified as
unauthorized to work.
Employers engage in prohibited activities such as
preemployment screening, adverse employment action based
on tentative nonconfirmations, and failure to inform
workers of their rights under the program.
Although Congress did not enact major immigration reform in
2007, there are still federal proposals to make the Basic Pilot
Program/E-Verify mandatory. For example, Representatives Heath
Shuler (D-NC) and Tom Tancredo (R-CO) in the House of
Representatives, and Senators Mark Pryor (D-AR) and Mary
Landrieu (D-LA) in the Senate introduced the Secure America
through Verification and Enforcement Act of 2007, or SAVE Act
(HR 4088/S. 2368), which would make Basic Pilot/E-Verify
---------------------------
<1> See "Findings of the Basic Pilot Program Evaluation."
Temple University Institute for Survey Research and Westat (June
2002); "Findings of the Web-Based Basic Pilot Evaluation."
Westat (2007).
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mandatory. In addition, on February 28, 2008, Representatives
Sam Johnson (R-TX), Kevin Brady (R-TX) and Paul Ryan (R-WI)
introduced the New Employee Verification Act of 2008 (HR 5515)
that would create a mandatory electronic employment verification
system (EEVS).
Related Activity in Other States
A number of states have tried to address the use of E-Verify in
some manner, with some states attempting to mandate the use of
the program and others attempting to prohibit or restrict its
use.
For example, legislation to in some manner require the use of
E-Verify or otherwise require public agencies or contractors to
verify employment eligibility of employees has been enacted in
thirteen states, including the following: Arizona, Arkansas,
Colorado, Hawaii, Iowa, Michigan, Tennessee, Texas and West
Virginia.
Some states have attempted to restrict or prohibit the use of
E-Verify. Most notable among these is Illinois, which in 2007
enacted legislation that amended its Right to Privacy in the
Workplace Act to prohibit employers from enrolling in E-Verify
until the SSA and DHS databases are able to make a final
determination on 99 percent of tentative non-confirmation
notices within three days.
In September 2007, DHS sued Illinois and asked the federal
courts to declare the law illegal. DHS argues that, because the
federal government could not comply with the 99 percent
determination requirement, the new law would effectively
preclude employers in Illinois from enrolling in E-Verify.
Therefore, DHS argues that enforcement of the Illinois law
conflicts with the express intent of Congress that E-Verify be
made available to employers in all fifty states.
The law was scheduled to take effect on January 1, 2008, but the
state agreed to not enforce the law pending the resolution of
the litigation.
RELATED LEGISLATION :
AB 2102 (Walters) requires every state agency, and persons who
contract with state agencies, to verify the employment
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eligibility of every employee using the E-Verify system. AB
2102 failed passage in the Assembly Committee on Business and
Professions on April 15, 2008.
AB 2201 (Plescia) requires a public entity, or a person that
contracts with a public entity, to verify electronically the
employment eligibility of an employee by using the E-Verify
system, or any successor to that system. AB 2201 is pending in
the Assembly Committee on Business and Professions.
AB 2421 (Huff) would have, among other things, required
employers in California to use E-Verify beginning January 1,
2009. AB 2421 was referred to this Committee but was pulled
from hearing at the request of the author.
ARGUMENTS IN SUPPORT :
Supporters argue that E-Verify is a voluntary, internet-based
program used by a growing number of employers nationwide to
electronically verify their workers' employment eligibility.
The E-Verify system uses information in databases maintained by
DHS and the SSA.
Supporters contend that, while the program is often portrayed as
a "magic bullet" that curbs the hiring of unauthorized workers,
it has been plagued by a multitude of problems since its
inception in 1997, including the fact that E-Verify relies on
extremely outdated databases. Supporters argue that the SSA
itself estimates that 17.8 million, or 4.1 percent, of its
records contain discrepancies, with 12.7 million of those
records pertaining to United States citizens. In addition,
supporters argue that two government-sponsored commissions have
found that there is frequent misuse of E-Verify by employers who
either use it in a discretionary way or to take adverse action
against employees.
Supporters argue that, in the face of extensive evidence that
E-Verify is neither a neutral nor a reliable source of
employment verification, the state should opt out of using this
flawed system. E-Verify exposes California workers to
discriminatory treatment and places a burden on employers.
The California Landscape Contractors Association (CLCA), writing
in support of this bill, states that its members who have used
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E-Verify have consistently reported problems with the accuracy
and timeliness of the SSA database used to match an applicant's
name and social security number. Too many "no-match" responses
result from clerical errors or name changes. CLCA contends that
the system cannot catch individuals who assume the identity of a
person who has a valid social security number. Conversely,
eligible workers are often not hired because the employer has an
immediate need and doesn't have time to resolve "no-match"
responses from the system.
REGISTERED SUPPORT / OPPOSITION :
Support
American Civil Liberties Union
American Federation of State, County and Municipal Employees
Asian Americans for Civil Rights and Equality
Asian Business Association
Asian Pacific American Labor Alliance, Los Angeles Chapter
Asian Pacific American Legal Center of Southern California
Bay Area Immigrant Rights Coalition
California Immigrant Policy Center (sponsor)
California Labor Federation, AFL-CIO
California Landscape Contractors Association
California Rural Legal Assistance Foundation
Coalition for Humane Immigrant Rights of Los Angeles
Consejo de Federaciones Mexicanas en Norteamerica
Family Bridges, Inc.
Koreatown Immigrant Workers Alliance
Latino Issues Forum
Lawyers' Committee for Civil Rights of the San Francisco Bay
Area
National Employment Law Project
One individual
Services, Immigrant Rights and Education Network
United Against Sexual Assault
Opposition
None on file.
Analysis Prepared by : Ben Ebbink / L. & E. / (916) 319-2091