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California Defies E-Verify?

Posted by AYIN International, Inc. on October 19, 2011 at 4:10 AM

 

In an astonishing move as only the inimitable State of California legislature can do, it has passed and Governor Jerry Brown has now signed into law AB 1236 “the Employment Acceleration Act of 2011.”


This legislation nullifies employers in the State from being burdened by the notion of having to voluntarily use E-Verify network to determine the employment eligibility of a person to legally work in this country.


It is obvious that part of the reason for this move by the California legislature is due to its international border connection to the South. The labor force in California, especially in the service sector, is largely supported by immigrants seeking employment in this country.


AB 1236 is designed to mitigate usage of a system that is supported all across this country, to aid in maintaining a fair and balanced approach to allow jobs for both citizens and immigrants of this country: E-Verify.


As a result the net effect of AB 1236 will only continue to make the intent of E-Verify a slower turn in the State of California.


The notion behind AB 1236 is to “Accelerate Employment” by removing a misperceived barrier in the hiring process.


AB 1236 falls short in consideration of the following hiring requirements in regards to employee eligibility which remain as you will see in the following facts: 

 

To begin:


AB 1236 states on page 4 sec. 2813 subsection 3,


“2813. The term “electronic employment verification system” does not include the I-9 Employment Eligibility Verification form or any other employment eligibility systems that are required by federal law. (b) “Employer” means an employer other than the state, or a city, county, or special district.


What this means is that California employers are still required by Federal Law to complete Form I-9 for all new hire employees and maintain a system of employee information administration. Why? Because there are circumstances which may require an employee to be “re-verified” and complete a new Form I-9. This becomes a cost to the employer to maintain accurate employer records.


The next issue is a new phrase which has emerged to identify someone who works from home and for different companies manually or via the internet. These employees are called the new “Fractional Workforce”.


The challenge for California employer’s whose hiring models are increasing in numbers to employ these “Fractional Workers”, is getting this remote employee/fractional worker to find a notary to assist them in completing Form I-9 as required by law to be in compliance within the 3 Day period from an employee’s first day of work for pay.


This is a big challenge for the labor Eco primarily due to the paradigm shift of employees being at fixed offices to employees who are mobile and remote, as Immigration Custom Enforcement (ICE) continues ramping up their random audits of employers across the country.


The audit process involves, ICE informing an employer via a Notice of Intent (NOI) they will receive a visit within 10 days, and the employer must produce accurately completed Form I-9’s for review as part of the process. Fines for inaccurate or incomplete Form I-9’s may be very costly for employers.


Finally, on the Federal front, congress is currently reviewing and considering the passage of HR 2164 “The Legal Workforce Act” which repeals paper based Form I-9’s. However even more to the point is the mandating of the usage of E-Verify for every employer in the country pre-empting all state level legislation.


At the end of the day in spite of California’s legislature efforts to “Accelerate Employment” opportunities, employers are still responsible for their employee’s documentation and the completion of the Federal mandated Form I-9 eligibility verification and certification whether manually or electronically and whether employers use E-Verify or not.

 

 

 


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