The following is a guest blog post by James C. Anderson of Triebsch & Frampton, APC, in Turlock, California. Mr. Anderson practices in the areas of labor law, employment law for management, business transactions, and civil litigation.
Many California employers use the federal electronic employment verification system, better known as E-Verify, to validate whether the employees they hire are authorized to work in the United States. E-Verify has been a relatively easy and low-risk verification system to use, but that may change with a new law that penalizes the use of E-Verify to check the employment authorization status of someone who hasn’t been offered employment.
California law doesn’t preclude a private employer from using E-Verify on applicants and current employees unless the employer is engaging in “unfair immigration-related practices” under Lab C §1019. That has included using the E-Verify system to retaliate against a person for exercising specified rights protected by regulations or local ordinances applicable to employees.
A new law expands the definition of “unfair immigration-related practices” effective January 1, 2016, to include using the E-Verify system to check the employment authorization status of an existing employee or an applicant who has not received an offer of employment. See new Lab C §2814. No longer must there be a retaliatory intent or purpose to violate California Labor Law.
This broadening of the law is aimed at combating discrimination in employment through the use of E-Verify as a pre-screening tool on applicants. E-Verify will no longer be able to be used until after an offer of employment.
Violation of this new law will result in stiff civil penalties of up to $10,000 per employee, per occurrence—that can add up quickly!
The key will be educating employers about this change in the law before expensive mishaps occur:
- Instruct employers to immediately stop using E-Verify as a pre-screening tool on applicants, unless required to do so under federal law.
- Advise employers to check and update employee handbooks and other written policies and, if necessary, delete any terminology permitting use of E-Verify before offers of employment.
- Instruct employers to reanalyze hiring procedures and methods and to make any necessary changes.
- Recommend that employers train managers and other personnel on the new restrictions.
On immigration issues in hiring, including a handy checklist on E-Verify procedures, turn to CEB’s Drafting Employment Documents for California Employers, chap 2. Also check out CEB’s Advising California Employers and Employees, chap 4 on immigration law requirements for employers.
Other CEBblog™ posts you may find useful:
- Immigration Issues Dos and Don’ts for Job Interviews
- Lucky 13: Best Practices for Immigration Issues in Hiring
- Should You Check a Job Applicant’s Social Media Posts?
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