BILL ANALYSIS Ó
SENATE COMMITTEE ON LABOR AND INDUSTRIAL RELATIONS
Senator Tony Mendoza, Chair
2015 - 2016 Regular
Bill No: AB 622 Hearing Date: June 24,
2015
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|Author: |Roger Hernández |
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|Version: |June 18, 2015 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|Alma Perez-Schwab |
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Subject: Employment: E-Verify system: unlawful business
practices.
KEY ISSUES
Should the Legislature prohibit an employer, or other person or
entity, from using the E-Verify electronic employment
verification system to check the employment authorization status
of an existing employee or applicant at a time or in a manner
inconsistent with federal law?
Should an employer who violates these provisions be liable for a
civil penalty not to exceed $10,000 for each unlawful use of
E-Verify, in addition to any other remedies available in law?
ANALYSIS
Under existing law, it is illegal for a person or other entity
to "knowingly" hire, recruit, or refer for employment an
unauthorized individual or any individual without complying with
specified employment verification procedures. Among other
things, the law requires employers to verify that every new hire
is either a U.S. citizen or authorized to work in the United
States by completing form I-9, Employment Eligibility
AB 622 (Roger Hernández) Page 2
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Verification, upon hire and submitting necessary documentation
for verification. In 1996, Congress passed the Illegal
Immigration Reform and Immigrant Responsibility Act (IIRIRA),
which required the Social Security Administration (SSA) and the
Immigration and Naturalization Service (INS), now the U.S.
Citizenship and Immigration Service (USCIS), to initiate
employment verification pilot programs.
Under federal law , the E-Verify Program (previously known as the
Basic Pilot Program) of the U.S. Department of Homeland Security
(DHS), implements the employment verification mandate under the
IIRIRA. The E-Verify Program is an internet-based system
operated by the USCIS in partnership with the SSA. The E-Verify
Program 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. In addition, employers
are required by federal law to have new employees complete form
I-9 prior to submitting an E-Verify inquiry.
Both state and federal law contains various provisions
prohibiting employment discrimination on different bases,
including, but not limited to, the race, color, sex, religion,
or marital status of a person. In addition, existing federal
law pertaining to E-Verify specifies, among others, that:
§ Employers may not use E-Verify to discriminate against
any job applicant or new hire on the basis of his/her
national origin, citizenship, or immigration status;
§ Employers may not use the system to pre-screen
applicants for employment;
§ Employers may not verify newly hired employees
selectively; and
§ Employers cannot take any adverse action against an
employee based upon E-Verify unless the program issues a
Final Non-confirmation.
Under existing California law , all protections, rights, and
remedies available under state law, except any reinstatement
remedy prohibited by federal law, are available to all
individuals regardless of immigration status who have applied
for employment, or who are or have been employed in the state.
In addition, for purposes of enforcing state labor and
employment laws, a person's immigration status is irrelevant to
the issue of liability or in proceedings, where no inquiry is
permitted into a person's immigration status except where the
person seeking the inquiry has shown, by clear and convincing
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evidence, that the inquiry is necessary in order to comply with
federal immigration law. (Labor Code §1171.5; Civic Code §3339;
Health and Safety Code §24000; Government Code §7285)
Existing law prohibits an employer from engaging in (or
directing another person or entity to engage in) unfair
immigration-related practices against any person for the purpose
of, or with the intent of, retaliating against any person for
exercising any right protected under Labor Code or by any local
ordinance applicable to employees. "Unfair immigration-related
practice" means any of the following practices when undertaken
for retaliatory purposes (Labor Code §1019):
a) Requesting more or different employment verification
documents than are required under law, or refusing to honor
documents that on their face reasonably appear to be
genuine.
b) Using the federal E-Verify system to check the
employment authorization status of a person at a time or in
a manner not required under federal law, or not authorized
under any memorandum of understanding governing the use of
the federal E-Verify system.
c) Threatening to file or the filing of a false police
report, or a false report or complaint with any state or
federal agency.
d) Threatening to contact or contacting immigration
authorities.
Existing law prohibits the state, or a city, county, city and
county, or 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. (Labor Code §2811-2813)
This Bill would enact 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 E-Verify to check the employment authorization status of
an existing employee or applicant at a time or in a manner not
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required under specified federal law or not authorized under
any federal agency memorandum of understanding governing the
use of a federal electronic employment verification system.
2)Specifies that nothing in this bill shall prohibit an employer
from utilizing E-Verify in accordance with federal law to
check the employment authorization status of an individual who
has been offered employment.
3)Provides that if the employer receives a tentative
nonconfirmation 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, including to furnish to
the employee with the notification as soon as practicable.
4)Provides that, in addition to other remedies available, an
employer is liable for a civil penalty not to exceed $10,000
for each unlawful use of the E-Verify system.
5)States that this bill is intended to prevent discrimination in
employment rather than to sanction the potential hiring and
employment of workers who are not authorized for employment
under federal law.
COMMENTS
1. Background on E-Verify:
E-Verify is a voluntary internet-based system operated by the
USCIS in partnership with the SSA. The purpose of E-Verify is
to electronically compare information entered on the I-9 form
with records contained in SSA and USCIS databases to verify
the identity and employment eligibility of newly hired
employees. Currently, E-Verify is free to employers and
available in all 50 states, the District of Columbia, Puerto
Rico, Guam and the U.S. Virgin Islands. According to USCIS,
the program is currently able to compare information taken
from the I-9 form against more than 425 million records in
SSA's database, and more than 60 million records in DHS's
immigration databases. New enhancements to E-Verify also
includes naturalization data which can help to instantly
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confirm the citizenship status of naturalized U.S. citizens;
however, naturalized citizens who have not yet updated their
records with SSA are the largest category of work authorized
persons who initially face an SSA mismatch.
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.
The employee must be given eight federal government work days
to contact the appropriate federal agency to resolve the
information mismatch.
On March 21, 2011, USCIS launched E-Verify Self Check, the
first online E-Verify program offered directly to the U.S.
workforce. This program enables individuals to voluntarily
check their own employment eligibility information to confirm
that it is in order. If Self Check finds a data-mismatch, the
individual can receive instructions to correct the records
with the appropriate federal agency.
2. Accuracy of TNCs and Proper Use of E-Verify:
The effectiveness of E-Verify has been questioned by the U.S.
Government Accountability Office (GAO). On December 17, 2010,
the GAO released a report to several Committees in the House
of Representatives, titled "Employment Verification: Federal
Agencies Have Taken Steps to Improve E-Verify, but Significant
Challenges Remain." According to GAO, the E-Verify system has
improved since its creation, however, the system still faces
challenges, including the rate of tentative non-confirmation
letters (TNCs) that may occur because of an employee's failure
to update his or her nationalization status in SSA databases,
failure to report a change in his or her name to SSA or an
employer's error in entering the employee's data into the
E-Verify system.
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The GAO report also notes that of the 22,512 TNCs resulting
from name mismatches in 2009; approximately 76 percent were
for citizens and approximately 24 percent for noncitizens.
The GAO asserts that, an E-Verify mandate for all new hires
would generate approximately 60 million queries and of these,
about 164,000 citizens and noncitizens would receive a
name-related TNC each year. However, GAO warns that this
number would greatly increase if E-Verify were made mandatory
for all employees nationwide.
Existing law prohibits an employer from engaging in (or
directing another person or entity to engage in) unfair
immigration-related practices against any person for the
purpose of, or with the intent of, retaliating against any
person for exercising any right protected under Labor Code or
by any local ordinance applicable to employees. "Unfair
immigration-related practice" means any of the following
practices when undertaken for retaliatory purposes:
a. Requesting more or different employment
verification documents than are required under law, or
refusing to honor documents that appear to be genuine.
b. Using the federal E-Verify system to check the
employment authorization status of a person at a time
or in a manner not required under federal law, or not
authorized under any memorandum of understanding
governing the use of the federal E-Verify system.
c. Threatening to file or the filing of a false
police report, or a false report or complaint with any
state or federal agency.
d. Threatening to contact or contacting
immigration authorities.
3. Need for this bill?
The electronic employment verification program of E-Verify
confirms the employment authorization of new hires based on
information provided on the Federal Form I-9. However,
because 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. 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 under a
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federal contract. Additionally, employers cannot take any
adverse action based on an E-Verify 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. Lastly, employers
must allow employees to work while they are contesting their
TNCs and until the employee receives a Final Nonconfirmation
(FNC).
As noted above, according to the U.S. Government
Accountability Office, of the 22,512 TNCs resulting from name
mismatches in 2009, approximately 76 percent were for U.S.
citizens and approximately 24 percent for noncitizens. The
error rate of E-Verify has resulted in several potential
employees being misidentified as not being eligible for
employment, and many having to utilize financial and legal
resources to resolve the discrepancies. The author and the
sponsors state that there have been reports of employers
misusing E-verify against their workers. They believe this
bill is necessary to limit the misuse of E-verify by
prohibiting employers from engaging in unjust E-Verify
practices against workers and imposing a civil penalty of a
maximum of $10,000 for each unlawful use of the E-Verify
system.
4. Proponent Arguments :
According to the author, each year, thousands of people may be
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
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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 potentially discriminatory E-Verify
practices, clarifying the notification process for businesses
and workers, and creating financial civil penalties for
employer abuse.
5. Opponent Arguments :
The California Bus Association has major concerns over the
fact that the federal government, who has jurisdiction of
immigration and naturalization, requires verification of
citizenship or naturalization for purposes of employment.
Many of the companies in their association use E-Verify or
something similar to comply with this law. They argue that
this bill hinders their ability to comply with federal law by
not allowing them to use the E-Verify system.
The California Professional Association of Specialty
Contractors believes that immigration policies and practices,
including the E-Verify system, are federal government issues
and that it is best to have the federal government deal with
potential unlawful business practices.
6. Prior Legislation :
AB 1065 (Chiu) of 2015: Held in Assembly Suspense
AB 1065 would make it an unlawful employment practice for an
employer to request more or different documents than are
required under federal law for employment eligibility
verification (I-9 form), or to refuse to honor documents
tendered that appear to be genuine, or to discriminate against
an immigrant with authorization to work based upon the
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specific status or term of status that accompanies the
authorization, or to attempt to reinvestigate or re-verify an
incumbent employee's authorization unless required by federal
law.
AB 263 (R. Hernandez) of 2013: Chaptered
AB 263 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. 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.
AB 1236 (Fong) of 2011: Chaptered
AB 1236, enacted provisions of law that prohibit state and
local entities from requiring an employer to use an electronic
employment verification system, including E-Verify, except
when required by federal law or as a condition of receiving
federal funds.
SUPPORT
California Immigrant Policy Center (Sponsor)
Mexican American Legal Defense and Educational Fund (Sponsor)
American Federation of State, County and Municipal Employees,
Local 3299
API Equality-LA
Asian Americans Advancing Justice-Los Angeles
Asian American's Advancing Justice-Sacramento
Asian Law Alliance
CA Conference Board of the Amalgamated Transit Union
CA Conference of Machinists
California Conference Board of the Amalgamated Transit Union
California Conference of Machinists
California Employment Lawyers Association
California Immigrant Youth Justice Alliance
California Partnership
California Rural Legal Assistance Foundation
California Teamsters Public Affairs Council
Central American Resource Center
CLEAN Carwash Campaign
Coalition for Humane Immigrant Rights of Los Angeles
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Dolores Street Community Services
East Bay Alliance for a Sustainable Economy
Educators for Fair Consideration
Employee Rights Center
Engineers and Scientists of California, IFPTE Local 20
Filipino American Service Group Inc.
Garment Worker Center
Immigrant Legal Recourse Center
Inland Empire Immigrant Youth Coalition
International Longshore and Warehouse Union
Jobs with Justice San Francisco
Justice for Immigrants Coalition of Inland Southern California
Latino Coalition for a Healthy California
National Association of Social Workers, CA Chapter
National Day Laborer Organizing Network
Orange County Immigrant Youth United
Our Family Coalition
Pomona Economic Opportunity Center
Professional and Technical Engineers, IFPTE Local 21, AFL-CIO
Resistencia Autonomia Igualdad LideraZgo
Restaurant Opportunities Center of Los Angeles
Roots of Change
San Diego Immigrant Rights Consortium
Service Employees International Union California
Service, Immigrant Rights, and Education Network
Southern California Coalition for Occupational Safety and Health
The CLEAN Carwash Campaign
Transforming Immigrant Communities through Education
UNITE-HERE, AFL-CIO
UNITE-HERE, Local 30
Utility Workers Union of America
Voz Interpreting
Worksafe
OPPOSITION
California Bus Association
California Professional Association of Specialty Contractors
-- END -
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