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< Back to current issue of Immigration Daily

Governor Brown signs bill prohibiting E-Verify mandates in California

by John Fay

Over this past weekend, Governor Jerry Brown of California signed into law Assembly Bill 1236 “the Employment Acceleration Act of 2011,” which effectively nullifies the growing patchwork of E-Verify laws, requirements and ordinances which have sprouted up all over the state during the past several years. Under the new law, neither the state of California nor any of its cities, counties, or special districts can require an employer (other than a government entity) to use E-Verify as a condition of receiving a government contract, applying for or maintaining a business license, or as a penalty for violating licensing or other similar laws. It’s important to note that California employers are still free to use E-Verify on a voluntary basis or as required by federal contracts – this law merely prohibits California government agencies (in all shapes and sizes) from forcing any employer to use E-Verify for the reasons mentioned above.

A New Direction?

For those out there who regularly scrutinize E-Verify legislation, you’ll be pleasantly surprised that the bill itself is actually very simple – not even 3 pages long, if you subtract all of the whitespace and signatures. I suppose it’s much easier (and requires less written fanfare) to draft legislation which restricts other legislation. But make no mistake about it – this bill is quite unique, in that it clearly goes against the E-Verify tidal wave of the past few years, during which time we’ve seen increasingly expansive E-Verify requirements from every corner of the country. State legislators, city government, even tiny municipalities and counties have dabbled with various forms of E-Verify mandates. Some require that all employers must use it; some impose requirements based on employer size; and others affect only those employers who contract with the state or local government.  Moreover, several Republican lawmakers have been advancing the idea of mandatory E-Verify at a national level through a bill that is currently making its way through Congress.

What’s in a name – the Employment Acceleration Act?

Certainly, anything that will accelerate employment these days is a good thing, but the bill’s connection with restricting E-Verify and creating new jobs will seem unclear to many. Yet, in reading the preamble of the bill, it’s clear that the drafters feel that E-Verify can serve as serious impediment to the hiring process by levying additional costs and obligations on employers. Specifically, the bill notes “the cost, technological demands, and staff time that an electronic employment verification system requires to use and implement come at a time when they [employers] are already struggling.”  There have been several recent studies on the costs of E-Verify, which support this assumption, including reports from the Center for American Progress, Bloomberg, and the National Foundation for American Policy.  Each one of these studies describes (in some detail) the various burdens associated with setting up the E-Verify program, including ensuring proper training, investing in the necessary people/equipment, and seeking advice/counsel as needed.

On the other hand, the E-Verify system has improved tremendously over the years through the adding of additional backend databases (to improve accuracy), an abundance of outreach initiatives and user interface enhancements. Earlier this year, the USCIS launched E-Verify Self-Check which enables individuals to check their work authorization status prior to being hired (in order to correct database errors), and most recently they have begun rollout of the E-Verify “RIDE” program which gives employers the ability to validate driver’s license information. These advancements have led some lawmakers to champion the E-Verify system as an effective means of protecting jobs for US workers.

What does this mean for California employers now?

While the E-Verify debate on Capitol Hill rages on, employers in California should take note of the city and county ordinances which will now be defunct based on this new law. Tracking E-Verify requirements in California can be challenging indeed, especially in light of the fact that not every county/city will routinely post their E-Verify ordinances for the entire world to see. Below is my best estimate based on a lot of research and some assistance from attorney partners. In addition, make sure to check out our interactive E-Verify map, which lists all of these California requirements as well as those of many other states as well.

California City or CountyEffective DateE-Verify Requirement
EscondidoMarch 23, 2011All employers doing business with the City
HesperiaOctober 19, 2010All contract vendors must certify utilization of the E-Verify system to confirm employment eligibility of the vendor’s newly hired employees’ legal right to work in the United States
Lake ElsinoreAugust 15, 2010Ordinance 1279 requires that after hiring an employee, every employer should verify the employment eligibility of the employee through the E-Verify program
Hemet June 9, 2011 Ordinance Bill No. 11-017 requires that after hiring an employee, every employer doing business in the City verify the employment eligibility of the employee through the E-Verify program
LancasterJanuary 1, 2010Ordinance 934 requires that after hiring an employee, every employer verify the employment eligibility of the employee through the E-Verify program
MenifeeJune 15, 2010All employers applying for a business license will need to affirmatively indicate their intent to use E-Verify
Mission ViejoJuly 1, 2007City ordinance 07-274 requires that the city and requested employers with city contracts verify the eligibility of new employees through E-Verify
MurrietaMarch 21, 2011All business owners must verify the eligibility of new employees through E-Verify as a condition of obtaining a business license
PalmdaleJuly 1, 2008Ordinance No. 1333 requires all contractors and subcontractors entering into or renewing a public contract for services with the city for an amount exceeding $50,000 to verify the eligibility of new employees through the E-Verify program
San Bernardino CountySeptember 1, 2011All contractors that provide services or products to the County must use E-Verify.
San Diego CountyOctober 21, 2011All county employees must be submitted to the E-Verify system (note, this requirement will not be impacted by the new law)
Simi ValleyOctober 11, 2010Ordinance No. 1166 requires all contractors entering into or renewing a public contract for services with the city to verify the eligibility of new employees through the E-Verify program
TemeculaJanuary 1, 2011Ordinance No. 10 requires all businesses in the City of Temecula to use the E-Verify System to verify newly hired workers
WildomarDecember 8, 2010All City Contractors shall enroll in the E-Verify program and provide the City documentation affirming its enrollment and participation in the program

Conclusion

In light of constantly changing E-Verify requirements, employers need to make a coordinated effort to successfully manage their I-9 and E-Verify obligations by working closely with immigration counsel and adopting the use of smart electronic tools which combine both the I-9 and E-Verify steps into one seamless process. As E-Verify continues to evolve and gain even more traction at the federal level, employers should make sure to utilize these resources and tools to ease E-Verify burdens and ultimately save costs down the road.

Originally published by LawLogix Group, Inc. Reprinted by permission.


About The Author

John Fay is an experienced corporate immigration attorney and I-9/E-Verify blogger with a unique background in designing and advising on case management technology. While practicing immigration in New York City, John designed and managed his firm’s proprietary web-based immigration management system, which featured a fully multilingual interface for international organizations. In his current role, John serves as Vice President of Products and Services and General Counsel at LawLogix, where he is responsible for overseeing product design and functionality while ensuring compliance with rapidly changing immigration rules.


The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.


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