BILL ANALYSIS                                                                                                                                                                                                    Ó






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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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