Effective January 1, 2016, a new California law signed by Gov. Brown will prohibit most California employers from using the federal E-Verify system to check the employment authorization status of any existing employee or any applicant who has not yet received an offer of employment. The only exception is where doing so is required by a federal law or as a condition of receiving federal funds. Employers who use the E-Verify system in violation of this new law are liable for a civil penalty of up to $10,000 per violation.

It is important to note, however, that the new law only applies to applicants that have yet to receive a job offer. It does not affect an employer's right to use the E-Verify system to check the employment authorization status of applicants who have already received a job offer.

Background

The federal E-Verify system is administered by the United States Citizenship and Immigration Services, the United States Department of Homeland Security, and the United States Social Security Administration. E-Verify  enables employers to check whether a new employee is eligible to work in the United States. E-Verify compares information from an employee's Form I-9 to data from U.S. Department of Homeland Security and Social Security Administration records.

If the information matches, the E-Verify system will confirm almost immediately that an individual  is authorized to work in the United States. If the information does not match, the E-Verify system will issue a "tentative non-confirmation" (TNC) notice.  A TNC means that federal government databases cannot confirm whether an individual is eligible for employment.

The New Law

The new law will prohibit employers from using E-Verify to check on the employment status of existing employees and pre-screening job applicants, except as required by federal law or as a condition of receiving federal funds.

The law also requires employers who use the E-Verify system to furnish affected job applicants and employees with a copy of any notification issued by the Social Security Administration or the United States Department of Homeland Security containing information specific to the employee's E-Verify case or any TNC notice.

Although the United States Department of Homeland Security states that employer participation in E-Verify is for the most part voluntary, it is estimated that the service is used by more than 600,000 employers across the country.

If you have any questions about the contents of this article, you may contact any member of the Firm. We can be reached at (818) 508-3700, or online at www.brgslaw.com.