BILL ANALYSIS                                                                                                                                                                                                    ”






                                                                     AB 622


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          Date of Hearing:   April 22, 2015


                     ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT


                               Roger HernŠndez, Chair


          AB 622  
          (Roger HernŠndez) - 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 HernŠndez) 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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