BILL ANALYSIS Ó
AB 622
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Date of Hearing: April 22, 2015
ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT
Roger Hernández, Chair
AB 622
(Roger Hernández) - As Proposed to be Amended April 22, 2015
SUBJECT: Employment: E-Verify system: unlawful business
practices
SUMMARY: Enacts provisions of law related to the use of the
federal electronic employment verification system known as
E-Verify. Specifically, this bill:
1)Prohibits an employer or other person, except as required by
federal law or as a condition of receiving federal funds, from
using the federal electronic employment verification system
known as E-Verify to check the employment authorization status
of an employee or applicant at a time or in a manner not
required under specified federal law or not authorized under
any memorandum of understanding governing the use of a federal
electronic employment verification system.
2)Specifies that nothing in this bill shall be interpreted to
prohibit an employer from utilizing an employment verification
system in accordance with federal law to check the employment
authorization status of an individual who has been offered
employment.
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3)Provides that if the employer receives a tentative
nonconfirmation (or "no-match letter") issued by the Social
Security Administration or the United States Department of
Homeland Security, the employer shall comply with the required
employee notification procedures under any memorandum of
understanding governing the use of the federal E-Verify
system.
4)Requires the employer to furnish to the employee any specified
notification containing information specific to the employee's
E-Verify case or any tentative nonconfirmation notice
promptly, but not exceeding the timeframe provided in the
Referral Date Confirmation notice, which is generated by
E-Verify after an employee chooses to contest the tentative
nonconfirmation notice.
5)Provides that, in addition to other remedies available, an
employer who violates this bill is liable for a civil penalty
not $10,000 for each unlawful use of the E-Verify system.
6)States that this bill is intended to prevent discrimination in
employment rather than to sanction the potential hiring and
employment of employees who are not authorized for employment
under federal law.
EXISTING LAW:
1)Prohibits an employer or any other person or entity from
engaging in unfair immigration-related practices, as defined,
against any person for the purpose of retaliating against the
person for exercising specified rights.
2)Prohibits the state, or a city, county, city and county, or
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special district, from requiring an employer, other than one
of those government entities, to use an electronic employment
verification system, including E-Verify, except when required
by federal law or as a condition of receiving federal funds.
FISCAL EFFECT: Unknown
COMMENTS: According to the author, this bill limits the misuse
of E-verify by prohibiting unscrupulous employers from engaging
in unjust E-Verify practices against workers (consistent with
federal law) and creates financial civil penalties for employers
who maliciously use E-Verify against their workforce.
Background on the Basic Pilot Program/"E-Verify" Program
The Basic Pilot Program is a voluntary Internet-based program
administered 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
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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 Program Extension
and Expansion Act of 2003. In August 2007, DHS renamed the
program "E-Verify."
Concerns Over Accuracy of E-Verify
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.
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According to a 2012 report<1> prepared by Westat and provided to
the U.S. Department of Homeland Security, the overall accuracy
of E-Verify for employment-authorized workers was approximately
94 percent. However, that means that there was a 6 percent
inaccuracy rate. In addition, the report found that the
erroneous TNC rate was 0.3 percent.
Concerns Over Proper Use of E-Verify and "Tentative
Nonconfirmation" (TNC)
According to a document<2> prepared by the U.S. Department of
Justice, E-Verify confirms the employment authorization of new
hires based on information provided on the Federal Form I-9.
Because a Form I-9 may only be completed after an employee has
been offered and accepted employment, E-Verify may not be used
to prescreen applicants.
---------------------------
<1>
http://www.uscis.gov/sites/default/files/USCIS/Verification/E-Ver
ify/E-Verify_Native_Documents/Everify%20Studies/Evaluation%20of%2
0the%20Accuracy%20of%20EVerify%20Findings.pdf
<2>
http://www.justice.gov/crt/about/osc/pdf/publications/E-VerifyAdv
ocateFlyer.pdf
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In addition, if an employer chooses to use E-Verify, it must be
used for all new hires (both U.S. citizens and non-citizens) and
cannot be used to verify current employees unless the employer
is required to use E-Verify for current employees based on a
federal contract containing a Federal Acquisition Regulation
(FAR) clause. E-Verify cannot be used to re-verify an
employee's expired employment authorization.
Once a case is submitted to E-Verify, E-Verify determines if the
information entered matches the information in government
records. After the information is provided, E-Verify provides
an initial case result, which is either "Employment Authorized"
or "Tentative Nonconfirmation" (TNC).
If an employee receives a TNC in E-Verify, the employer must
promptly provide the employee with a written notice about the
TNC, at which time the employee either elects to contest it or
not to contest it. If an employee decides to contest the TNC,
the employer must promptly provide a referral letter from
E-Verify that contains specific instructions, contact
information, and a deadline for contacting either the Department
of Homeland Security (DHS) or the Social Security Administration
(SSA), depending on the source of the mismatch.
Employers cannot take any adverse action based on an E-Verify
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TNC against an employee who contests the TNC. Adverse actions
include firing, suspending, withholding pay or training, or
otherwise infringing upon the employee's employment. Employers
cannot ask employees who receive TNCs for more work
authorization documentation. In the event of a TNC, the
employee is provided eight (8) federal government work days from
when the employer refers the case in the E-Verify system to
contact the appropriate federal agency to begin the resolution
process. The deadline on the referral letter is calculated from
the date the letter is printed. Employers must allow employees
to work while they are contesting their TNCs. It may take
longer than 8 work days to resolve a TNC. Employers must not
take adverse action against an employee unless and until the
employee receives a Final Nonconfirmation (FNC).
PRIOR LEGISLATION
AB 1236 (Fong) of 2011 enacted provisions of law that prohibit
state and local entities from requiring an employer, other than
one of those government entities, to use an electronic
employment verification system, including E-Verify, except when
required by federal law or as a condition of receiving federal
funds.
AB 263 (Roger Hernández) of 2013 prohibits an employer or any
other person or entity from engaging in unfair
immigration-related practices, as defined, against any person
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for the purpose of retaliating against the person for exercising
specified rights. The law defines "unfair immigration-related
practice" to include using E-Verify to check the employment
authorization status at a time or in a manner not required under
federal law or authorized under a federal memorandum of
understanding.
RELATED LEGISLATION
AB 1065 (Chiu) makes it an unlawful employment practice for an
employer to request more or different documents than are
required under federal law, or to refuse to honor documents
tendered that on their face reasonably appear to be genuine, or
to discriminate against an immigrant with authorization to work
based upon the specific status or term of status that
accompanies the authorization to work, or to attempt to
reinvestigate or re-verify an incumbent employee's authorization
to work unless required to do so by federal law or authority.
AB 1065 is currently pending in this Committee.
ARGUMENTS IN SUPPORT
According to the author, each year, thousands of people may be
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wrongly kept from working or even fired because of a federal
program known as E-Verify. TNC rates are particularly high for
employment-authorized immigrant workers even if they are
employment authorized. This is of significant concern because
companies have taken adverse actions against individuals and
workers who receive TNCs. While the President's "deferred
action" deportation relief initiatives represent key steps
forward, individuals eligible for these newly announced programs
could potentially be erroneously flagged by the E-Verify system,
at least half of California's undocumented immigrant community
members are excluded from protection. Misuse of E-Verify
threatens to drive undocumented Californians deeper into the
underground economy.
The author states that while E-Verify is optional for most
companies in California, it builds an added barrier within the
employer-employee relationship. By using E-Verify, companies
are positioned to act as immigration agents causing detriment to
productivity and confusion in the workplace. Under federal
regulations, E-Verify should not be used on job applicants and
current workers yet there are virtually no accountability
measures or penalties in place for unscrupulous employers who
abuse E-Verify.
This bill is co-sponsored by the Mexican American Legal Defense
and Educational Fund (MALDEF) and the California Immigrant
Policy Center. They argue that this bill will strengthen
California's protections for all workers by limiting misuse of
the E-Verify program and creating penalties for abuse. The
sponsors states that this bill would codify and clarify existing
federal policy by prohibiting employers from engaging in
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potentially discriminatory E-Verify practices, clarifying the
notification process for businesses and workers, and creating
financial civil penalties for employer abuse.
ARGUMENTS IN OPPOSITION
The California Bus Association argues that the federal
government requires verification of citizenship or
naturalization for purposes of employment, and that many of
their members use E-Verify to comply with this requirement.
They argue that this bill would hinder them from complying with
federal law.
COMMITTEE STAFF COMMENT
As noted above, at least one opponent has argued that this bill
would prohibit them from utilizing E-Verify on an individual to
whom an offer of employment has been made. However, the author
and the sponsor have indicated that this is neither the effect
nor the intent of this bill. Rather, this bill prohibits the
use of E-Verify to screen applicants or re-verify current
employees, except as required by federal law or as a condition
of receiving federal funds.
In order to make this point more abundantly clear, the author
proposes to amend this bill to expressly state that nothing in
this bill shall be interpreted to prohibit an employer from
utilizing an employment verification system in accordance with
federal law to check the employment authorization status of an
individual who has been offered employment.
REGISTERED SUPPORT / OPPOSITION:
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Support
AFSCME, Local 3299
Asian American's Advancing Justice-Sacramento & Los Angeles
Asian Law Alliance
CA Conference Board of the Amalgamated Transit Union
CA Conference of Machinists
California Employment Lawyers Association
California Immigrant Policy Center (sponsor)
California Immigrant Youth Justice Alliance
California Rural Legal Assistance Foundation
California Teamsters Public Affairs Council
Central American Resource Center
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CLEAN Carwash Campaign
Coalition for Humane Immigrant Rights of Los Angeles
Dolores Street Community Services
EBASE
Educators for Fair Consideration
Employee Rights Center
Engineers and Scientists of California, IFPTE Local 20
Filipino American Service Group Inc.
Garment Worker Center
Inland Empire Immigrant Youth Coalition
International Longshore and Warehouse Union
Jobs with Justice San Francisco
Justice for Immigrants Coalition of Inland Southern California
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Mexican American Legal Defense and Educational Fund (sponsor)
National Association of Social Workers, CA Chapter
National Day Laborer Organizing Network
Our Family Coalition
Pomona Economic Opportunity Center
Professional and Technical Employees, IFPTE Local 21
RAIZ
Restaurant Opportunities Center of Los Angeles
Roots of Change
San Diego Immigrant Rights Consortium
SEIU California
Service, Immigrant Rights, and Education Network
Southern California Coalition for Occupational Safety and Health
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Transforming Immigrant Communities through Education
UNITE-HERE
UNITE-HERE, Local 30
Utility Workers Union of America
Voz Interpreting
Worksafe
Opposition
California Bus Association
California Professional Association of Specialty Contractors
Analysis Prepared by:Ben Ebbink / L. & E. / (916) 319-2091
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