In other states, E-Verify use may be mandatory, as the U.S. Supreme Court ruled that states can require businesses to use the federal E-Verify program.1 But with the exception of certain federal contractors and subcontractors, California employers can choose whether to use E-Verify. State agencies and cities or counties, including special districts, cannot require a private employer to use E-Verify, except when required by federal law or as a condition of receiving federal funds.2

Federal contractors and subcontractors are required to use the E-Verify system to confirm employees' abilities to work in the United States. This rule covers federal contractors and subcontractors whose contract includes the Federal Acquisition Regulation E-Verify Clause.

Information on E-Verify is available at the E-Verify website.

Unlawful E-Verify Practices

It is a violation of California law to use E-Verify at a time or in a manner not required by federal law to check the employment authorization status of an existing employee or of an applicant who hasn’t been offered employment.3

Employers can still use E-Verify, in accordance with federal law, to check the employment authorization status of a person who’s been offered employment — just not for existing employees and applicants who don't have an offer.

There is a $10,000 civil penalty for each violation of this state law, in addition to any other available remedies. Each unlawful use of E-Verify on an employee or applicant is a separate violation.

This law is intended to prevent discrimination against applicants or employees, not to sanction the potential hiring and employment of unauthorized individuals.

Federal law already prohibits employers from pre-screening job applicants through E-Verify, or submitting existing employees' data to E-Verify. This is the same rule that applies to Form I-9. For more information, see Completing the Form I-9.

• Employers who use E-Verify in an unauthorized manner may be violating federal and state laws.

E-Verify Posting Requirement

Employers who participate in E-Verify must display required participation posters at hiring sites so they’re clearly visible to potential employees. The two required posters are the E-Verify Participation Poster and the Right to Work Poster.

These posters indicate that the employer participates in E-Verify and describe employees’ rights under the program. The posters must be displayed in both English and Spanish. Once an employer is enrolled in E-Verify and has completed the online tutorial, the employer will be prompted to print and post the English and Spanish notices. Employers can access downloadable posters after logging in to E-Verify.

Tentative Nonconfirmation (TNC)

Generally, if the information submitted through E-verify matches federal government records, the employee receives an “Employment Authorized” response in E-Verify.

Sometimes E-Verify cannot instantly confirm employment authorization because a manual review of government records is necessary. In those cases, the employer will receive a “DHS Verification in Process” response, and an initial verification result will follow within 24 to 48 hours. But if the information submitted through E-Verify doesn’t match federal records, E-Verify will return a “Tentative Nonconfirmation” (TNC) response.

A TNC response means that the SSA and/or the DHS couldn’t confirm that the employee's information matches government records. A TNC response doesn’t necessarily mean an employee is unauthorized to work; there are legitimate reasons why an employee may receive this result.

Once a TNC is issued, the employee has an opportunity to resolve the problem. It’s important to understand and follow the proper E-Verify procedures, which are designed to ensure fair treatment and due process for employees.

Both federal and state laws set forth specific procedures that employers must follow if they attempt to verify a person's eligibility through E-Verify and receive a TNC.

• Employers who receive a TNC should consult information on the E-Verify website regarding the specific procedures under federal law.

California also imposes specific requirements for employers that receive a TNC.4 They must:

• Provide an employee any TNC or any SSA- or DHS-issued notification that contains information specific to the employee's E-Verify case. The notification must be furnished as soon as practicable.
• Comply with the required employee notification procedures under any memorandum of understanding governing E-Verify’s use.

There is a $10,000 penalty for violation this law.

In addition, you should direct the person to the E-Verify fact sheet, How to Correct Your Immigration Records after Resolving a Tentative Nonconfirmation in E-Verify. The fact sheet provides detailed instructions for individuals correcting their immigration records.

1. Chamber of Commerce of the United States v. Whiting, 131 S. Ct. 1968 (2011)