Governor Brown signs bill prohibiting E-Verify mandates in California

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 byfederal 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.

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.