February 2016

Over the past few years, California has seen a host of new laws aimed at protecting undocumented workers.  This makes dealing with employees who do not have a legal right to work in the United States increasingly complicated. As with many areas of employment law in 2016, proceed with caution.


Under the federal Immigration and Nationality Act, it is illegal to knowingly employ someone who does not have a right to work in the United States. Once an employee has been offered and accepted a position, employers are required to verify an employee’s right to work using Form I-9.  This places the burden on the employer to review documents such as a social security card, birth certificate or “green card” and attest to their validity. A completed I-9 for each employee must be kept on file for three years, and is subject to audit.  Hot tip – keep these forms separate from your employee files, unless you want the federal government running through your personnel records!

The I-9 process should be straightforward. It is not.  For example, if you hire an employee for a five year project and find out their visa expires in two years, you cannot “discriminate” against that employee by withdrawing the job offer.  Instead, you should make a note of when the information will need to be re-checked.  Problems also arise when employees present documents that are clearly false, or raise questions about their right to work.  Similarly, a driver’s license issued only to undocumented immigrants is a clear indicator that the person presenting it likely doesn’t have the right to work in the US, but California law penalizes those who discriminate against anyone presenting such a license.

What about E-Verify? This federal system was designed to make immigration checks more efficient, but as of January 1, 2016, California law prohibits the use of E-Verify except when an offer of employment has been made.  Don’t delay – using E-Verify for existing employees is no longer allowed.


Government Code § 12926 bars discrimination against an individual because he or she holds a driver’s license issued to undocumented residents.  It also amends the Fair Employment and Housing Act to specify that discrimination on the basis of national origin includes discrimination on the basis of possessing a special driver’s license.  While actions taken by an employer to comply with a requirement or prohibition under federal Immigration and Nationality Act is permissible under the law, there are no real guidelines.  In short, you cannot discriminate against an employee who presents a “special” driver’s license (and that discrimination could include firing them), but if you continue to employ them, you are on notice that you are violating federal law.


Assembly Bill 2751 amended the Labor Code to add a $10,000 fine for employers found to have discriminated against employees based on their citizenship status.  In addition to retaliation, California law now defines threatening to file, or filing, a false report with a state or federal agency as an “unfair immigration related practice.” In short, if you suspect an employee does not have the right to work in the United States, you had better be sure you are right – because if you are wrong, you could find yourself on the wrong side of this new law.

In addition to the $10,000 fine employers face, Senate Bill 666 added yet another penalty – under this amendment to the Labor Code, an employer’s Business or Professional license can be suspended or revoked if an employer is found to have violated provisions designed to protect against discrimination based on immigration status!


Any time there is a conflict between state and federal law, employers should proceed with caution.  There are steps that you can take to protect yourself, and some that require the advice of an attorney.  First, we recommend that employers make every offer of employment, conditional on successful verification of the right to work in the United States.  Where possible, do this in writing.  It is appropriate to let employees know that this is a condition of employment ahead of time, but if you do so, make sure you communicate that to all candidates (beware doing so only to those you suspect are not documented, for obvious reasons).  As soon as you make the conditional job offer and it is accepted, complete the I-9 and use E-Verify.  If the I-9 process raises red flags, or if questions arise regarding an employee’s right to work during their employment, call an attorney and proceed with care.  Our goal is to help you assess and manage risk, and the pitfalls of acting alone in this area are too great.

                                                                                                                                                                                                                                                                                    Naomi R. Dewey, Partner


DISCLAIMER:  This Advisor is one of a series of business, real estate, employment, estate planning and tax Advisors prepared by the attorneys at Buynak, Fauver, Archbald & Spray, LLP. This Advisor is not exhaustive, nor is it legal advice. You should discuss your particular situation with us or with your own attorney. Our legal representation is only undertaken through a written engagement letter and not by the distribution of this Advisor.