California Restricts Employers’ Use of E-Verify

The new law (Cal. Labor Code § 2814) will make it unlawful for an employer to use the federal electronic-employment verification system known as E-Verify to check the employment authorization status of an existing employee or an applicant who has not been offered employment at a time or in a manner that (a) is not required by federal law or (b) is not authorized under any federal agency memorandum of understanding governing the use of the E-Verify system.

According to the legislation, employers are permitted to use the E-Verify system only:

When an offer of employment has been made; or
When:
The use of the E-Verify system is done in accordance with 8 U.S.C. § 1324a which allows E-Verify screening only when hiring, recruiting, or referring for employment; and
It is authorized under a federal agency memorandum of understanding governing the use of the E-Verify system; or
When required by federal law; or
When it is a condition of receiving federal funds.

The law also places certain requirements on employers when a tentative non-confirmation is issued by the Social Security Administration or the United States Department of Homeland Security indicating that the information entered in E-Verify did not match federal records. In these cases, employers must comply with the required employee notification procedures under any memorandum of understanding governing the use of the E-Verify system. Employers must also furnish the employee any notification issued by the agencies containing information specific to the E-Verify case or any tentative non-confirmation notice, as soon as practicable.

Penalties for violations of the law are significant. An employer could be assessed civil penalties up to $10,000 for each violation. Each unlawful use of the E-Verify system on an employee or applicant constitutes a separate violation.

California Assembly Bill 622 is available here for review: http://www.leginfo.ca.gov/pub/15-16/bill/asm/ab_0601-0650/ab_622_bill_20150909_enrolled.pdf

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