Our blog post on January 5, 2016 summarized California’s new E-Verify law and other updates. So what should California employers do differently now with respect to I-9s and E-Verify? Enrollment in E-Verify remains voluntary under federal and California law except for federal contractors with the FAR provision in their contract. California’s new law (AB 622) added significant penalties at the state level for E-Verify violations in addition to federal penalties.
Also the California law requires employers to provide Tentative Non-Confirmation notices to subject employees “as soon as practicable” after receipt from E-Verify. The increased penalties for E-Verify violations are an important reminder for E-Verify employers that it’s critical to follow E-Verify rules and procedures carefully and promptly, including completing the I-9 process for each new employee in addition to the E-Verify check. It’s an important reminder for all employers that I-9 compliance can become too routine or too decentralized and compliance may lag. Employers should run a self-audit each year to check compliance across the organization. A self-audit need not check every I-9 completed in the past year (or since the last self-audit). Employers that hired a large number of employees should make a self-audit plan that will check enough I-9s to confirm that I-9 procedures are consistent, thorough and accurate and will identify I-9s for audit in a consistent manner without regard to the national origin or documentation of the employees. Counsel can help employers plan a self-audit that is effective and compliant within available resources. Guidance issued by the U.S. Department of Homeland Security and U.S. Department of Justice in late 2015 regarding how to plan and implement I-9 self-audits reiterates that self-audits must be planned with care to avoid penalties for discrimination, retaliation, or interference with lawful employment by authorized workers.