BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 622|
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THIRD READING
Bill No: AB 622
Author: Roger Hernández (D), et al.
Amended: 6/18/15 in Senate
Vote: 21
SENATE LABOR & IND. REL. COMMITTEE: 4-1, 6/24/15
AYES: Mendoza, Jackson, Leno, Mitchell
NOES: Stone
SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8
ASSEMBLY FLOOR: 50-25, 5/22/15 - See last page for vote
SUBJECT: Employment: E-Verify system: unlawful business
practices
SOURCE: California Immigrant Policy Center
Mexican American Legal Defense and Educational Fund
DIGEST: This bill expands the definition of an unlawful
employment practice to prohibit an employer or any other person
or entity from using the E-Verify system at a time or in a
manner not required by federal law or not authorized by a
federal agency memorandum of understanding to check the
employment authorization status of an existing employee or an
applicant who has not received an offer of employment, as
specified. This bill provides for a civil penalty of $10,000
for each violation of the provisions of the bill.
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ANALYSIS:
Existing federal law:
1)Prohibits a person from "knowingly" hiring, recruiting, or
referring 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 U.S. by completing form
I-9, Employment Eligibility Verification, upon hire and
submitting necessary documentation for verification.
2)Establishes the E-Verify Program (previously known as the
Basic Pilot Program) of the U.S. Department of Homeland
Security (DHS), as an Internet-based system operated by the
U.S. Citizenship and Immigration Services (USCIS) in
partnership with the Social Security Administration (SSA) to
enable 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.
3)Requires employers to have all new employees complete form I-9
prior to submitting an E-Verify inquiry.
Existing state law:
1)Provides that 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.
2)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
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by federal law or as a condition of receiving federal funds.
3)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 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.
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
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.
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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 SSA or the DHS, 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.
Background
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 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, E-Verify determines if the information
entered matches the information in government records. After
the information is provided, E-Verify provides an initial case
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result, which is either "Employment Authorized" or "Tentative
Nonconfirmation" (TNC). If an employee receives a TNC, the
employer must promptly provide the employee with a written
notice, 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 DHS or 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.
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 TNC letters 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.
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.
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FISCAL EFFECT: Appropriation: No Fiscal
Com.:YesLocal: No
SUPPORT: (Verified7/7/15)
California Immigrant Policy Center (co-source)
Mexican American Legal Defense and Educational Fund (co-source)
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
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
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, California Chapter
National Day Laborer Organizing Network
Orange County Immigrant Youth United
Our Family Coalition
Pomona Economic Opportunity Center
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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: (Verified7/7/15)
California Professional Association of Specialty Contractors
ARGUMENTS IN SUPPORT: 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 the use of E-Verify is optional for
most companies in California, it builds an added barrier within
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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. Proponents 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.
ARGUMENTS IN OPPOSITION: 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.
ASSEMBLY FLOOR: 50-25, 5/22/15
AYES: Bloom, Bonilla, Bonta, Brown, Burke, Calderon, Campos,
Chau, Chiu, Chu, Cooley, Cooper, Dababneh, Daly, Dodd, Eggman,
Frazier, Cristina Garcia, Eduardo Garcia, Gatto, Gipson,
Gomez, Gonzalez, Gordon, Gray, Roger Hernández, Holden, Irwin,
Jones-Sawyer, Levine, Lopez, Low, Mathis, McCarty, Medina,
Mullin, Nazarian, Perea, Quirk, Rendon, Ridley-Thomas,
Rodriguez, Salas, Santiago, Mark Stone, Thurmond, Ting,
Williams, Wood, Atkins
NOES: Achadjian, Travis Allen, Baker, Bigelow, Brough, Chang,
Chávez, Dahle, Beth Gaines, Gallagher, Grove, Hadley, Harper,
Jones, Kim, Lackey, Linder, Maienschein, Mayes, Melendez,
Obernolte, Patterson, Steinorth, Wagner, Wilk
NO VOTE RECORDED: Alejo, O'Donnell, Olsen, Waldron, Weber
Prepared by:Alma Perez / L. & I.R. / (916) 651-1556
7/9/15 8:58:55
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