BILL ANALYSIS �
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THIRD READING
Bill No: AB 1236
Author: Fong (D)
Amended: 3/31/11 in Assembly
Vote: 21
SENATE LABOR & INDUSTRIAL RELATIONS COMM : 4-1, 06/08/11
AYES: Lieu, DeSaulnier, Leno, Yee
NOES: Runner
NO VOTE RECORDED: Wyland, Padilla
ASSEMBLY FLOOR : 55-22, 05/19/11 - See last page for vote
SUBJECT : Employment: hiring practices: electronic
employment
verification
SOURCE : California Immigrant Policy Center
Mexican American Legal Defense and Education
Fund
DIGEST : This bill creates the Employment Acceleration
Act of 2011 to enact provisions of law related to the use
by employers of specified federal electronic employment
verification systems. Specifically, this bill: (1) except
as required by federal law or as a condition of receiving
federal funds, prohibits the state, a city, county, city
and county, or special district from requiring an employer
to use an electronic employment verification system,
including under the following circumstances: (a) as a
condition of receiving a government contract; (b) as a
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condition of applying for or maintaining a business
license; and, (c) as a penalty for violating licensing or
other similar laws, (2) defines an "electronic employment
verification system" as a system that allows employers to
electronically verify workers' employment authorization
with the federal government, including the Basic Pilot
(renamed in 2007 as E-Verify) Program. However, this term
does not include the I-9 Employment Eligibility
Verification form or any other employment verification
systems that are required by federal law, and (3) makes
several findings and declarations pertaining to the
deficiencies of electronic employment verification
programs.
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. 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.
Existing federal law requires that all employers have new
employees complete form I-9, Employment Eligibility
Verification, upon hire. Existing law also requires new
employees, within three days of being hired, to show their
employers documentation establishing identity and
eligibility to work in the United States. To comply with
federal requirements, the employer has to certify on the
I-9 form that the documents presented by the employee
reasonably appeal to be genuine on their face, and the
employer must retain such information in its files for
three years after employee's date of hire, or one year
after the date the worker's employment is terminate,
whichever is later.
Under federal law, the E-Verify Program (previously known
as the Basic Pilot Program) of the U.S. Department of
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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 other things, 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, except any reinstatement remedy
prohibited by federal law, are accessible to all
individuals who have applied for employment regardless of
their immigration status, or who are or have been employed
in the state. In addition, for purposes of enforcing state
labor and employment law, 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 evidence, that the inquiry
is necessary in order to comply with federal immigration
law.
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This bill creates the Employment Acceleration Act of 2011
to enact provisions of law related to the use by employers
of specified federal electronic employment verification
systems.
Specifically, this bill:
1.Excepts as required by federal law or as a condition of
receiving federal funds, prohibit the state, a city,
county, city and county, or special district from
requiring an employer to use an electronic employment
verification system, including under the following
circumstances:
As a condition of receiving a government contract;
As a condition of applying for or maintaining a
business license; and,
As a penalty for violating licensing or other
similar laws.
1.Define an "electronic employment verification system" as
a system that allows employers to electronically verify
workers' employment authorization with the federal
government, including the Basic Pilot (renamed in 2007 as
E-Verify) Program. However, this term does not include
the I-9 Employment Eligibility Verification form or any
other employment verification systems that are required
by federal law.
2.Make several findings and declarations pertaining to the
deficiencies of electronic employment verification
programs.
Comments
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
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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.
In addition, the GAO's report states that identify fraud
remains a challenge for the E-Verify system because
employers may not be able to determine if an employee is
presenting genuine identity and employment eligibility
documents that are borrowed or stolen. Their report also
notes that E-Verify cannot detect cases in which an
unscrupulous employer assists unauthorized employees. For
example, employers may provide unauthorized employees with
legitimate documents or ignoring mismatches between the
photograph that appears on the employee's permanent
resident card and DHS's digital photograph of the
individual. GAO notes that of the 97.4 percent of
employees who were confirmed as work authorized by E-Verify
in 2009, USICIS was unable to determine how many employees
E-Verify incorrectly confirmed as authorized.
This bill, with the exception of federal requirements,
prohibits the state, a city, county, city and county, or
special district from requiring an employer to use an
electronic employment verification system.
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. E-Verify is a re-branding of its
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predecessor, the Basic Pilot/Employment Eligibility
Verification Program, which has been in existence since
1997.
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.
If an employee receives an SSA tentative non-confirmation
(TNC), they have the option of visiting an SSA field office
to update their record or if the employee is a naturalized
citizen, the employee may choose to call USCIS directly to
resolve the TNC. The employee must be given eight federal
government work days to contact the appropriate federal
agency to contest 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 status. USCIS is
releasing E-Verify Self Check in phases, with the first
phase only accessible to users who live in Arizona, Idaho,
Colorado, Mississippi, Virginia, or the District of
Columbia.
E-Verify Required for Federal Contracts
On June 9, 2008, DHS designated E-Verify as the electronic
employment eligibility verification system that all federal
contractors must use as required by Executive Order 12989.
President George W. Bush amended the executive order in
order to direct all federal departments and agencies to
require contractors and subcontractors, as a condition of
each future federal contract, to agree to use an electronic
employment verification system (as designated by the
Secretary of Homeland Security) to verify the employment
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eligibility of all persons hired during the contract term
and all persons performing work within the U.S. on a
federal contract. In addition, DHS also announced that it
would be modifying its own procurement manual to designate
a vendor's participation in E-Verify as a positive
consideration in determining who is awarded a contract with
DHS.
The Executive Order 12989 was set to begin on January 15,
2009, however in late December 2008, five trade groups led
by the U.S. Chamber of Commerce brought suit in federal
court challenging the executive order. The final rule
became effective September 8, 2009 and requires certain
federal contractors, through language inserted into their
contract, to begin using E-Verify to verify their new and
existing employees.
Local Ordinances
Some cities and municipalities in California have recently
begun passing local ordinances to require employer to use
the E-Verify program. For example, the City of Lancaster,
as of December 31, 2009, requires all employers to verify
the employment eligibility of all new hires through the
E-Verify program. If an employer violates this city
ordinance, the employer must fire the unauthorized employee
and sign a declaration under penalty of perjury within ten
business days stating that the employer has terminated the
employment of all undocumented workers. If the employer
violates the ordinance for a second time, the city may
revoke the employer's business license.
Related activity in other States
A number of states have attempted to address the use of
E-Verify in some manner, with some states attempting to
mandate the use of the program and others attempting to
prohibit or restrict its use. Several states including
Arizona, Arkansas, Colorado, Hawaii, Iowa, Michigan,
Tennessee, Texas and West Virginia, have all enacted
legislation to require the use of E-Verify or otherwise
require public agencies or contractors to verify employment
eligibility of employees.
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Other states have attempted to restrict or prohibit the use
of E-Verify. Most notable among these is Illinois, which
in 2007 enacted legislation that amended its Right to
Privacy in the Workplace Act to prohibit employers from
enrolling in E-Verify until the SSA and DHS databases are
able to make a final determination on 99 percent of
tentative non-confirmation notices within three years.
That same year, DHS sued Illinois and asked the federal
courts to declare the law illegal. According to DHS, the
federal government could not comply with the 99 percent
determination requirement, and therefore the new law would
effectively preclude employers in Illinois from enrolling
in E-Verify, conflicting with the express intent of
Congress that E-Verify be made available to employers in
all fifty states. The Illinois law was scheduled to take
effect on January 1, 2008, however, the state agreed to not
enforce the law pending the resolution of the litigation.
On January 1, 2010, the Illinois Right to Privacy in the
Workplace Act requirements became effective. This law
requires employers who choose to use E-Verify, to sign an
attestation form at the time of enrollment in the program
to acknowledging that they have received E-Verify training
materials from DHS and have completed the Computer Based
Tutorial. Illinois law also requires employers to
acknowledge that they have posted required notices in a
prominent place clearly visible to prospective employees.
Prior Legislation
AB 1288 (Fong) of 2009 is almost identical to AB 1288 from
2009 which would have prohibit 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 as a
condition of receiving a government contract, as a
condition of applying for or maintaining a business
license, or as a penalty for violating licensing or other
similar laws. This bill was vetoed by the Governor. The
veto message stated:
The bill would create administrative burdens for
employers receiving government funds in that a June 6,
2008, federal Executive Order 12989, as amended,
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requires all federal contractors, as a condition of
any future federal contract, to use E-Verify to verify
the employment eligibility of their workers.
Employers receiving government funds would be required
to sort out and identify complex funding streams and
comply with both the Executive Order and provisions of
this and other related laws. The bill also raises the
potential for increased claims and litigation by
placing new requirements in the Labor Code without
also defining how the requirements will be enforced.
Moreover, the bill implicates constitutional questions
regarding the State's authority to impose this
prohibition against charter counties and cities for
matters that may constitute municipal affairs.
AB 2076 (Fuentes) of 2008, would have prohibited any state,
city, county or special district from requiring any
employer to use E-Verify, as specified. AB 2076 is
similar, but not identical, to this bill. This bill died
on the Senate Inactive File.
FISCAL EFFECT : Appropriation: No Fiscal Com.: No
Local: No
SUPPORT : (Verified 6/9/11)
California Immigrant Policy Center (co-source)
Mexican American Legal Defense and Education Fund
(co-source)
Agricultural Council of California
American Civil Liberties Union
American Federation of State, County and Municipal
Employees
American Friends Service Committee
Asian Pacific American Legal Center
California Farm Bureau Federation
California Chamber of Commerce
California Grain and Feed Association
California Grocers Association
California Hotel and Lodging Association
California Independent Grocers Association
California League of Food Producers
California Labor Federation
California Pan Ethnic Health Network
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California Pear Growers
California Seed Association
California State Floral Association
Coalition for Humane Immigrant Rights of Los Angeles
County of Santa Clara, Board of Supervisors
El Concilio
Empowering Pacific Islander Communities
Legal Aid Society-Employment Law Center
Los Amigos of Orange County
National Immigration Law Center
National Network for Immigrant and Refugee Rights
Nisei Farmers League
Numerous Individuals
Priority Africa Network
South Asian Network
Street Level Health Project
The Council of Mexican Federations
Warehouse Workers United
Western Growers
ARGUMENTS IN SUPPORT : According to the author's office,
since its inception, the E-Verify program has been plagued
by a multitude of problems that adversely affect both
workers and businesses. The problem with E-Verify and
"no-match" letters, proponents argue, is that they rely
upon the SSA database to determine immigration status which
is something the SSA database was never intended to do.
Proponents argue that the SSA database is known to be
riddled with errors, and claim that over seventy percent of
those inaccuracies involve people who are working in the
country legally.
The author contends that the high 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. According to proponents, in
many cases, the problems revealed by a "no-match" letter
result from confusion over the order or spelling of a
person's name and not from any immigration violation. In
addition, proponents argue, alongside the costs of learning
to actually utilize the program, a business would suffer
from delayed hiring and the cost of resolution to mistaken
identities. Proponents argue that businesses who are
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already struggling in the current economy will face
additional burdens and unanticipated problems if they are
required to use E-Verify, potentially harming their ability
to create new jobs and revenue.
Furthermore, proponents argue that the recent practice by
some cities and municipalities in California (Indio,
Mission Viejo, Palmdale, San Juan Capistrano, Victorville
and Yucca Valley) of passing local ordinances to require
private employers to use the E-Verify program, not only
contradict the original intent that the program be
voluntary, but it also places a financial and
administrative burden on employers and subjects potential
employees to false identification. According to the author,
this bill will provide employers the flexibility to decide
if participating in E-Verify would be beneficial to their
business. This bill does not prohibit the use of E-Verify;
rather it prohibits the state, cities, counties, cities and
counties, or special districts from requiring the use of
E-Verify by private employers.
ASSEMBLY FLOOR : 55-22, 05/19/11
AYES: Achadjian, Allen, Ammiano, Atkins, Beall, Bill
Berryhill, Block, Blumenfield, Bonilla, Bradford,
Brownley, Buchanan, Butler, Charles Calderon, Campos,
Carter, Cedillo, Chesbro, Davis, Dickinson, Eng, Feuer,
Fong, Fuentes, Furutani, Galgiani, Gatto, Gordon,
Halderman, Hall, Hayashi, Roger Hern�ndez, Hill, Huber,
Hueso, Huffman, Lara, Bonnie Lowenthal, Mendoza,
Mitchell, Monning, Olsen, Pan, Perea, V. Manuel P�rez,
Portantino, Skinner, Solorio, Swanson, Torres, Valadao,
Wieckowski, Williams, Yamada, John A. P�rez
NOES: Conway, Cook, Donnelly, Fletcher, Beth Gaines,
Garrick, Grove, Hagman, Harkey, Jeffries, Jones, Knight,
Logue, Mansoor, Miller, Morrell, Nestande, Nielsen,
Norby, Silva, Smyth, Wagner
NO VOTE RECORDED: Alejo, Gorell, Ma
PQ:nl 6/9/11 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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