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Heads Up Employers: New Law Limits Use of E-Verify

interview_80608276The 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:

© The Regents of the University of California, 2015. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

One Response

  1. […] Be careful using E-Verify—it could cost you. E-Verify is a voluntary federal system employers may use to verify that the employees they hire are authorized to work in the United States. To curtail misuse of that system, California law will soon prohibit employers from using E-Verify to check the status of an existing employee or an applicant who hasn’t received an offer of employment, except as required by federal law or as a condition of receiving federal funds. This new law carries a hefty civil penalty of up to $10,000 per violation. See Lab C §2814, added by Stats. 2015, ch 696, AB 622 (effective January 1, 2016). […]

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