Misuse of USCIS’ E-Verify System Is Now Enforceable in California Superior Court
On October 9, 2015 Governor Jerry Brown signed Assembly Bill 622 into law. AB 622 expands the definition of an unlawful employment practice to include the misuse of the E-Verify system. The new law prohibits employers from using the E-Verify system to inquire on the employment authorization status of an employee outside of the time and manner permitted under federal law. Additionally, employers that use E-Verify are now required to give employees copies of the derogatory notices issued to the employer from E-Verify. This new law provides for a civil money penalty of up to $10,000 per occurrence.
Under the Immigration and Nationality Act and the Memorandum of Understanding employers sign to access E-Verify, employers agree to submit an employee’s employment eligibility information after an offer of employment is extended to a potential employee. Employers have up to the employee’s third day of work to submit the employee’s information and documentation to E-Verify for processing. Pre-screening of job applicants with E-Verify or submission of existing employees data to the E-Verify system is prohibited under federal law.
With the enactment of AB 622, these violations of federal law are now actionable in state court. Instead of relying on the federal authorities to police employers, the California Legislature has given a private right of action to every applicant in California to investigate and prosecute an employer’s misuse of the E-Verify system.
E-Verify employers should create and follow procedures regarding access and use of E-Verify. Additionally E-Verify employers should keep a log of each use of E-Verify and transmission of derogatory E-Verify information to the employee. Employers with questions regarding the proper use of E-Verify should consult with an attorney familiar with unfair employment practices, the employment verification provisions of the Immigration and Nationality Act, and E-Verify. Assembly Bill 622 goes into effect on January 1, 2016.