AB 622: Curtails the use of E-Verify system

Assembly Bill 622, which curtails employer use of the federal E-Verify system, was signed into law Oct. 9, 2015. This "Protecting Immigrant Workers from Unscrupulous Employers" bill adds new Section 2814 to the California Labor Code and became effective Jan. 1.

E-Verify, which was first rolled out as a pilot program in 1997, is an online service that compares information from workers' I-9 forms to the records of the U.S. Social Security Administration and the U.S. Department of Homeland Security in order to assess authorization to work in the United States.

Proper use of E-Verify is currently limited to the narrow window of time after a prospective employee has received an offer of employment, but before he or she has commenced employment. Employers are prohibited from using E-Verify to prescreen applicants or to monitor current employees' immigration status on an ongoing basis.

Employers' use of E-Verify is voluntary, and the U.S. Citizenship and Immigration Services (USCIS) reports that over 600,000 employers used it this past year to check the status of more than 30 million workers. Federal contractors and some recipients of federal funds are required to use E-Verify. Some states, including Arizona, Mississippi, North Carolina and Texas, require all or most employers to participate in E-Verify.

With AB 622, California has gone in the opposite direction by expanding the definition of an "unlawful employment practice" to prohibit an employer or any other person or entity from using the E-Verify system at a time or in a manner not required by a specified federal law or not authorized by a federal agency memorandum of understanding. In particular, employers are prohibited from checking the employment authorization status of an existing employee or an applicant who has not received an offer of employment, except as required by federal law or as a condition of receiving federal funds.

AB 622 also requires an employer that uses E-Verify to provide to the affected employee any notification issued by the Social Security Administration or the U.S. Department of Homeland Security, containing information specific to the employee's E-Verify case or any tentative non-confirmation notice.

The bill provides for a civil penalty of $10,000 for each instance of unlawful use of the E-Verify system.

Last year, USCIS issued a proposal that would require companies using E-Verify to re-verify the authorization to work of employees with expiring work authorizations. Further, there is legislation pending in Congress that would require all employers to use E-Verify.

Anthony J. Oncidi is a Los Angeles-based partner and the chair of Proskauer Rose LLP's Labor and Employment Department in Los Angeles.