An Administrator's Guide to California Private School Law

Chapter 3 – Hiring

an automated link to federal databases to help employers confirm the employment authorization of new hires. E-Verify is free to employers and is available in California. 366 Schools who participate in E-Verify must complete the Form I-9 for each newly hired employee in the United States. E-Verify employers may accept any document or combination of documents on the Form I-9, but if the employee chooses to present a List B and C combination, the List B (identity only) document must have a photograph. 367 After completing a Form I-9 for a new employee and creating a case in E-Verify, the school will receive a response from E-Verify regarding the employment authorization of the employee. In some cases, E-Verify will provide a response indicating a tentative non-confirmation of the employee’s employment authorization. This does not mean the employee is necessarily unauthorized to work in the U.S. Rather, it means that E-Verify is unable to immediately confirm the employee’s authorization to work. In the case of a tentative non-confirmation, the school must notify the employee, and an employee who wishes to contest a tentative non- confirmation result should contact the appropriate agency (DHS or the Social Security Administration) within the prescribed time periods. 368 Schools must follow certain procedures when using E-Verify that were designed to protect employees from unfair employment actions. If an employer chooses to use E-Verify:

 E-Verify must be used for all new hires (both U.S. citizens and noncitizens).  E-Verify may not be used selectively for some employees and not others.  Employers may not: (1) prescreen applicants for employment; (2) check employees hired before the employer became a participant in E-Verify; (3) re-verify employees who have temporary employment authorization; or (4) terminate or take other adverse action against an employee based on a tentative non-confirmation. 369

Effective January 1, 2016, California law expanded the definition of an unlawful employment practice to prohibit employers from using the E-Verify system to check the employment authorization status of both existing employees and job applicants who have not been offered employment unless the use of E-Verify is required by federal law or as a condition of receiving federal funds. 370 Schools are not, however, prohibited from using the E-Verify system in accordance with federal law. Rather, they may not use the E-Verify system to check the employment authorization status of individuals in a manner that is inconsistent with how federal law intended employers to use the system. This legislation creates a $10,000 penalty for employers who unlawfully use E-verify. 371 D. D ISCRIMINATION B ASED O N I MMIGRANT S TATUS The IRCA 372 prohibits employers with four or more employees from discriminating against any person (other than an unauthorized alien) in hiring, discharging, or recruiting or referring for a fee because of a person’s national origin or, in the case of a citizen or protected individual, citizenship status. 373

An Administrator’s Guide to California Private School Law ©2019 Liebert Cassidy Whitmore 101