In California, individuals now have a private right of action to bring a claim against an employer who uses the E-Verify program for pre-screening purposes.  They also have a private right of action if an employer does not provide them with the required notices as part of the Further Action Notice (FAN) or Tentative Notice Confirmation (TNC) process.  These are now considered unlawful employment practices under California’s Labor Code.

E-Verify is the electronic employment eligibility verification program maintained by U.S. Citizenship and Immigration Services (USCIS).  It complements the Form I-9, as the employer needs to input information from the Form I-9 into the E-Verify system when creating a case to determine employment eligibility.

Currently, an employer using E-Verify cannot use the program to pre-screen employees to determine if they are employment authorized prior to hiring them. Check pages 8 and 82 of the E-Verify User Manual which states that “Pre-screening [is] the prohibited practice of creating a case in E-Verify before a job offer has been accepted.”   In addition, an employer using the E-Verify system must provide any notices generated as a result of a FAN or TNC to the individual.  To read more about employers obligation to provide E-Verify generated notices such as the TNC, read the E-Verify Memorandum of Understanding  or on USCIS’ website.

Back to California and AB-622 Employment: E-Verify system: unlawful business practices.  The law added Section 2814 to the California Labor Code.  AB-622 was signed by the Governor in October of last year.  In California, what now constitutes an unlawful employment practice has been expanded to include pre-screening of job candidates through use of the E-Verify system and not providing E-Verify generated notices specific to an individual’s E-Verify case.  This means that individuals now have a private right of action, which they can enforce in state court.  And it can result in a civil penalty up to $10,000 for each violation for the employer who is found to have engaged in an unlawful employment practice.

Bottom line — do not use the E-Verify system to pre-screen job candidates prior to hiring them and make sure you provide them with any of the notices generated by the E-Verify system, such as the TNC.