No Mandatory E-Verify in California, but OK in 4 Other States

California’s Employment Acceleration Act of 2011 prohibits laws making E-Verify mandatory in this State.  E-Verify is an Internet-based electronic employment eligibility verification system run by the Department of Homeland Security (“DHS”).  Under federal law, except in certain circumstances such as for federal contractors, employer participation and use of E-Verify is voluntary

The Employment Acceleration Act ensures that private employers retain the ability to voluntarily choose whether to participate in E-Verify as intended by federal law.

The new law adds Section 2811, entitled Electronic Employment Verification Systems, to the California Labor Code.  This law prohibits the State of California, any city, county, city and county, or special district from requiring employers to use an electronic employment eligibility verification system, including under the following circumstances: (1) as a condition of receiving a government contract, (2) as a condition of applying for or maintaining a business license, or (3) as a penalty for violating licensing or other similar laws.

Any and all local city or county ordinances requiring the use of E-Verify in California are now null and void. 

But 4 other states are making E Verify mandatory for employers:

E-verify will become mandatory in Georgia, North Carolina, Pennsylvania and Tennessee effective January 1, 2013.  .

Georgia’s state immigration law, the Illegal Immigration Reform and Enforcement Act of 2011 (House Bill 87), already required large employers to enroll in and use e-verify for new hires.  Effective January 1, 2013, private employers in the state of Georgia with 11-99 employees must use e-verify for all new hires.  The law exempts employers with 10 or few employees.

In North Carolina pursuant to Session Law 2011-263 (House Bill 36), on January 1, 2013, private employers with 100 or more employees (but fewer than 500 employees) must use E-Verify for all new hires.

In Pennsylvania, effective January 1, 2013, Act No. 127 requires all state public works contractors and subcontractors with state public works contracts worth $25,000 or more to enroll in and use E-Verify for all new hires.

The final phase of Tennessee’s immigration law (Public Chapter No. 436) will go into effect on January 1, 2013 requiring all private employers with 6 to 199 employees to enroll in and use E-Verify for new hires. 

Labor unions, worker advocates and workers should keep in mind that these laws do not apply in the State of California. 

By Monica Guizar

Legal Developments