ACLU Policy Brief. -Verify. E y. The Employee Verification System: Not Yet Ready for Primetime

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1 ACLU Policy Brief As technology provides new ways to gather information and databases proliferate, the need for privacy protections becomes more urgent. The ACLU is a national leader in working to guarantee that individuals may determine how and when others can gain -Verify E y access to their personal information. The Employee Verification System: Not Yet Ready for Primetime PO Bo San Diego, CA p/ info@aclusandiego.org 39 Drumm St., San Francisco, CA p/ f/ West Eighth St., Los Angeles CA p/ Orange Co: ocinfo@aclusc.org

2 ACLU Policy Brief ACLU of California A Note on This Report Two months after this report was first published, Governor Jerry Brown signed AB 1236, the Employment Acceleration Act, on October 9, The new law protects workers and the California economy by prohibiting both State of California and local jurisdictions form forcing the flawed E-Verify employment verification system on private employers, and affirms that the program is optional for the majority of California s businesses not currently enrolled in the E-Verify program. E -Verify This law effectively nullifies the E-Verify mandate in cities like Escondido and other neighboring jurisdictions that have adapted this policy in recent years. These localities now have to prepare to comply with the new state law. While this development is a welcome relief to workers rights and civil rights advocates, the ACLU of California believes that continued vigilance is required to make sure that this policy is properly enforced and implemented and the lessons that this report emphasized are heeded. This version has been moderately adapted from the original. The Employee Verification System (E-Verify): Not Yet Ready for Primetime is a report by the ACLU of California. Written by Cynthia Buiza, Policy Director, ACLU of San Diego & Imperial Counties. The report is available at The Employee Verification System: Not Yet Ready for Primetime The author wishes to acknowledge valuable research from Julia Gomez and feedback from Kevin Keenan, Sean Riordan and Rebecca Rauber. by Cynthia Buiza, Policy Director, ACLU of San Diego & Imperial Counties with invaluable research and writing assistance by Julia Gomez, Legal Intern, ACLU of San Diego & Imperial Counties ACLU of San Diego & Imperial Counties PO Bo San Diego, CA p/ f/ info@aclusandiego.org

3 Eecutive Summary The Employee Verification System (E-Verify): Not Yet Ready for Primetime E-Verify is an electronic employment verification system operated by the Department of Homeland Security. Its purpose is to allow employers to verify employee work eligibility. Federal agencies require contractors to use E-Verify on covered federal contracts. In misguided attempts to address illegal immigration, some state and local governments, including cities and counties in California, began to require businesses within their jurisdictions to use E-Verify. This caused problems because of inaccurate results produced by E-Verify, costs to businesses, and the incentive those costs create to engage in racial profiling. On October 9, 2011, Governor Jerry Brown signed AB 1236, which put an end to local jurisdictions forcing the flawed E-Verify system on private employers. Private employers may still adopt E-Verify voluntarily and therefore should consider carefully the costs and other problems associated with the program. Moreover, mandatory E-Verify is still being promoted as part of legislation in Congress. E-Verify has produced inaccurate results, costs to businesses and incentives to engage in racial profiling. The E-Verify system relies upon the database of the Social Security Administration, and minor discrepancies in data (name mismatches, etc.) commonly produce incorrect results. A total of 75% of erroneous tentative non-confirmation results in 2009 were issued to U.S. citizens. The system also confirms authorization for unauthorized workers 54% of the time. E-Verify is, quite simply, not very reliable. Employers cannot fire workers who receive a tentative non-confirmation result; instead, they must continue employment through an appeal process, which can result in substantial (and unrecoverable) salary, training and overhead costs. As a result, there is an incentive for employers to avoid hiring employees who are more likely to receive a tentative non-confirmation result. While members of the public might be persuaded to believe that E-Verify is the answer to worker eligibility issues, its record proves otherwise, and with unacceptable errors and so The Employee Verification System (E-Verify): Not Ready for Primetime What is E-Verify? The Employee Verification System, or E-Verify, is an electronic employment verification program that may be used by employers to verify employee work eligibility. The Basic Pilot Program, the predecessor to E-Verify, was first introduced in the federal immigration law in 1996, and the program has since evolved into its current format. The program was meant to replace the I-9 process 1, but thus far it has only supplemented the process. Since September, 2009, federal agencies have begun requiring many federal contractors entering into new contracts to use E-Verify for new employees and for eisting employees working on covered federal contracts. While the program is not otherwise mandated by the federal government, many states have enacted laws requiring employers to use E-Verify for new employees, and many local governments across the country have enacted similar laws. The U.S. Chamber of Commerce also opposes making E-Verify mandatory for a plethora of reasons, including concern that the system is inefficient, has led The U.S. Chamber of Commerce opposes E-Verify because it leads to discrimination and threatens Americans privacy. to discrimination against foreign-born workers, and threatens the privacy of many American workers. While members of the public might be persuaded to believe that E-Verify is the answer to worker eligibility issues, its record proves otherwise, and with too many errors and too much potential for abuse, it is necessary to untangle the many aspects of the system which make it problematic. much potential for abuse, the ACLU of California believes that it is necessary to untangle the various aspects of the system which make it problematic. It is also important for advocates, especially workers rights advocates, to report any workplace discrimination and misuse of E-Verify and educate the community about the compleities of the system. Because the program continues to have many problems, Congress has continually resisted making E-Verify mandatory. 2 3

4 How Does E-Verify work? but the employee may be fired if E-Verify E-Verify database flaws frequently potential fines and criminal sanctions, In order to begin using E-Verify, an employer must first sign a Memorandum of Understanding (MOU) with the Department of Homeland Security (DHS). Once an employee is hired, an employer can log onto the E-Verify website and enter I-9 employee information. (By law, I-9 information must be collected within three days of hiring). Information is then matched against data from the Social Security Administration (SSA), which verifies name, Social Security number, and date of birth, as well as data from the Department of Homeland Security, which verifies work-authorization status of non-citizens. If E-Verify is unable to returns a final non-confirmation (FNC). A FNC may result either from employee work ineligibility or a mistake made by the employee, employer, SSA or DHS. What are the problems of the system? Database Flaws E-Verify brings together large databases that have flaws and invites problems for both U.S. citizens and immigrants lawfully allowed to work in the United States. According to the United States Citizenship and Immigration Services (USCIS), a Social Security Administration (SSA) TNC may result when an employee s name, Social Security number or date of birth is incorrect in SSA records, a name change was not reported to SSA, citizenship or immigration status was not updated with SSA, or the SSA record contains another type of error. affect authorized workers, including citizens, permanent residents, and other immigrants with valid work permits. Of the erroneous TNCs reported in 2009 resulting from name mismatches, 75% of those were issued to U.S. citizens 4. E-Verify is also inefficient in detecting undocumented immigrants. E-Verify often returns a confirmation in cases in which undocumented immigrants use borrowed valid Social Security numbers. A study by Westat Corporation, submitted to the Department of Homeland Security, found that E-Verify erroneously returns a confirmation for unauthorized workers 54% of the time 5. Potential for Discrimination Because employers cannot fire workers while they contest a TNC, they have an incentive to hire only people who look like they are authorized to work. Small businesses, which do not have the rather than risk hiring an undocumented worker and loss of their business license 6. While Whiting is a major development on the wider debate on employee verification systems, it is a narrow one and does not fundamentally address what is wrong with the E-Verify system. E-Verify data would be a gold mine for intelligence agencies, law enforcement and anyone who wants to spy on American workers. Security, Identity Theft, and Privacy Concerns Mandatory use of E-Verify will likely eacerbate privacy and identity theft concerns. In testimony before Congress Such mistakes can arise from a number of resources to go through several hiring in February 2011, the American Civil circumstances. For eample, a 16-year-old processes, have a particular incentive to Liberties Union (ACLU) stated: confirm worker eligibility because there U.S. citizen received an erroneous TNC discriminate. In Chamber of Commerce v. The data in E-Verify, especially if is a problem matching the SSA or DHS because he used his father s last name on Whiting, the Supreme Court upheld an combined with other databases, databases, E-Verify returns a tentative his job application, but SSA records had Arizona law, the Legal Arizona Worker s would be a gold mine for non-confirmation (TNC) result. The him listed under his mother s maiden Act, that imposes harsh penalties on intelligence agencies, law TNC may be challenged by the employee name 2. In another instance, a naturalized businesses that hire undocumented enforcement, licensing boards, within eight days of receiving the result. citizen in Oregon received a TNC because immigrants. Supreme Court Justice Breyer, and anyone who wanted to spy on An employer may not fire an employee SSA s database did not reflect that he had in a dissenting opinion, noted that under American workers. Because of its while the employee challenges a TNC, become naturalized 3. laws like Arizona s, employers will likely scope, it could form the backbone err on the side of discrimination and face for surveillance profiles 4 5

5 of every American. It could be easily combined with other data such as travel, financial, or communication information. Undesirable behaviors from unpopular speech to gun ownership to paying for items with cash could be tracked and investigated by the government. Some of these databases linked to E-Verify are already mined for data. For eample, the TECS (Traveller Enforcement Compliance System) database uses the Automated Targeting System (ATS) to search for suspicious travel patterns. Such data mining would be even further enhanced by the inclusion of E-Verify information 7. To partially respond to such concerns, USCIS introduced a self-check feature, which allows individuals in certain states to log onto a website before seeking employment in order to ensure that E-Verify returns a confirmation. While the self-check feature allows workers to check on their E-Verify data, it is important to note that this process is still in its infancy and currently not accessible to all workers. In order to improve E-Verify s accuracy, USCIS has continued to epand the database to include SSA and DHS records, as well as a photo-matching tool. The photo-matching tool, which allows employers to compare certain identity documents with photographs on DHS records, originally only allowed the comparison of employment authorization cards and permanent resident cards to stored DHS photos. However, in 2010 USCIS gained access to Department of State records to allow the use of passport pictures when using the photomatching tool 8. USCIS is looking to epand the photo-matching tool, and is in talks with several state governments to gain access to Department of Motor Vehicle photos so that it can add driver s licenses to the list of identity documents that can be used in the photo-matching tool 9. Thus, USCIS continues to epand the number of databases connected to E-Verify, without first ensuring that each individual database is secure and creating appropriate safeguards for the protection of private information. Human Error In addition to database issues, problems can result from human error. Proper use of E-Verify requires that at least four different people correctly perform their responsibilities. This system requires that SSA and DHS employees be properly trained to fi any issues in order to ensure that erroneous TNCs are corrected. There have been instances in which employees correctly contest TNCs, but SSA failed to update E-Verify with the corrected information, which in turn, resulted in an FNC 10. Employers must also make sure they correctly follow all E-Verify procedures, including ensuring that they not deny employment offers to individuals, that they do not fire employees simply because a TNC result comes back, and that they properly inform employees about their options to correct a TNC result. Furthermore, the federal government, and states and localities that make E-Verify mandatory, must properly enforce sanctions against employers who commit violations in order to ensure that employee rights are protected. Governments must not only ensure that employers do not hire unauthorized workers; they must also ensure that workers are protected from discrimination and illegal hiring and firing practices that are likely to result from mandatory use of E-Verify. Nationwide Implementation As noted, E-Verify is still a pilot program. Originally developed to replace the I-9 process, E-Verify has simply added burdens to employers, employees, and government administrations that use the system. Therefore, all of the above concerns would only be worsened by wider implementation of the system. According to the Department of Homeland Security, only 238,000 employers are currently enrolled in the program 11, and Bloomberg estimates that E-Verify cost small businesses about $81 million in fiscal year If all small businesses had used E-Verify in fiscal year 2010, Bloomberg estimates it would have cost them $2.6 billion 13. If all small businesses had used E-Verify in 2010, estimates are that it would have cost them $2.6 billion. What would be the impact of the system on local businesses? The increase in mandatory use of E-Verify threatens to negatively impact businesses, local governments and economies. If a newly hired employee receives a TNC, the employer may not fire the employee while it is being contested. Further, E-Verify places the burden on employers to properly inform their employees of their right to contest a TNC. This means that larger businesses with corporate offices must ensure that their local offices and managerial staff properly follow E-Verify procedures. Businesses, 6 7

6 large and small, will have to allocate resources to properly train managerial staff on E-Verify, and to hire and train employees who may potentially be unauthorized to work. Without comprehensive immigration reform, a mandatory E-Verify negatively affects all workers. Because of these concerns, and others, including the potential for labor shortages in certain sectors, the U.S. Chamber of Commerce has actively supported comprehensive immigration reform and opposed the implementation of mandatory E-Verify at all levels of government 14. What would be the impact of the system on workers? This is worrisome too. Without comprehensive immigration reform, mandatory use of E-Verify would negatively affect all workers in San Diego, not just unauthorized workers. Authorized workers will be affected by problems with the E-Verify system as well as the inability of a cash-strapped government to enforce proper use of the system. For eample, in San Diego County, immigrants, who comprise 27% of the labor force 15, would be especially affected because of E-Verify system problems, possible discrimination and, for undocumented immigrants, the potential for abuse by employers. Westat Corporation noted that immigrants authorized to work in the United States would be heavily burdened by mandatory use of E-Verify. They are more likely to receive erroneous TNCs, because their personal information must be matched against both SSA and DHS databases 16. There is also a possibility for intentional or unintentional discrimination. Employers trying to streamline their hiring process might choose to hire only people whom they believe are likely to be authorized to work. This could lead to racial screening before hiring or refusing to hire workers who don t look like they are authorized to work. Some sectors, such as manufacturing, services and agriculture, depend heavily on immigrant labor. The agricultural sector would be particularly affected if E-Verify became mandatory. The San Diego Farm Bureau has called for comprehensive immigration reform before any increased workplace enforcement of current immigration laws 17. Without comprehensive immigration reform, they argue, all E-Verify will do is create labor shortages in the agricultural sector. In Temecula, where the use of E-Verify became mandatory in January, 2011, some employers have complained that they will not be able to find authorized workers willing to do the same jobs as undocumented workers 18. ACLU interviewed management staff in a supermarket in the city of Escondido which voluntarily uses E-Verify. Escondido s population is 46% Latino. The market has reported having problems filling certain positions because of its use of the system 19. Because of this, some employers in these sectors will have to choose between losing money, going out of business, or finding a way to game the system and pay undocumented workers in cash instead of on the company payroll, leading to further growth of the underground economy. This has already happened in Arizona, where E-Verify became mandatory in An underground economy leaves undocumented workers in a vulnerable position. Unscrupulous employers can use the threat of firing as a way to lower wages and allow work conditions to deteriorate. State and local governments should consider the effect that widespread use of E-Verify would have on small businesses, workers, and the community at large. Given the costs and burdens, is it the best choice for the community and the economy? Undocumented individuals do not comprise an isolated community: they are family members of constituents or The San Diego Farm Bureau says all E-Verify will do is create labor shortages in the agricultural sector. parents of U.S. citizens. For eample, approimately 54% of immigrants living in San Diego are from Latin America and 71% percent of non-citizen immigrants in San Diego live in households with at least one U.S. citizen 21. While some may argue that the economic inconvenience of correcting an erroneous TNC is minimal, it is important to 8 9

7 consider that immigrants, whether citizens or legal residents, are more likely to receive erroneous TNCs. the employment of unauthorized workers illegal, Arizona made use of the federal E-Verify system mandatory for all employers. In Chamber of Commerce of the United States v. Whiting, 131 S. Ct (2011), the Supreme Court upheld LAWA, including the law s E-Verify provision. The Supreme Court held that LAWA fell within the savings clause, and thus did not interfere with the comprehensive immigration system Congress sought to establish when it enacted IRCA. What can advocates do to protect vulnerable workers? PResist efforts in Congress to mandate E-Verify. California made a good start by agreeing that the mandated verification system did not serve the best interests of the state. However, Congress is considering the Legal Workforce Act, H.R. 2164, which would mandate E-Verify and for the first time in history require every American to be checked against a government database. P Education Even in places where E-Verify is not mandatory, some employers are voluntarily using the system. It is therefore important that all workers know their rights. Employers may not discriminate against workers whom they suspect are likely to be unauthorized to work, may not screen workers for employment eligibility before hiring them, must use E-Verify within three days of hiring a worker, must inform a worker of a TNC result and of the worker s right What is the legal framework for E-Verify? The Immigration Reform and Control Act of 1986 (IRCA) preempts any state or local laws that impose civil or criminal sanctions on businesses that hire unauthorized workers. However, in what In October, 2011, Governor Jerry Brown signed into law AB 1236, which prohibits localities from mandating the flawed E-Verify program. It is important to note that even if implementation of mandatory E-Verify were permissible in California, this would A national system would be one of the largest and most widely accessible databases of private information ever created in the U.S., and could quickly evolve into a national identity system. Its size and openness would present an irresistible target for identity thieves. to contest the result, and may not fire a worker while the worker contests a TNC. PAdvocates should encourage workers to report any discrimination and misuse of E-Verify to the following offices: Department of Justice, Civil Rights has come to be known as the savings clause, IRCA gives states some leeway to sanction businesses through licensing and similar laws. 22 Some states and localities, including Arizona, have interpreted this clause to mean that states have the authority to suspend or revoke business licenses of employers who hire unauthorized workers. Under this authority, Arizona passed the Legal Arizona Workers Act (LAWA) in In addition to making not necessarily make it a wise policy choice. The Supreme Court decided that, if a state so chooses, it may implement mandatory use of E-Verify for all businesses in the state, but it in no way made a determination about the soundness of the system. Fortunately, state politicians in California agreed, and passed AB Additionally, because the system would cover everyone eligible to work in the United States, it could quickly epand to a host of other uses for the intelligence community, law enforcement, and corporate America. E-Verify could easily be used to verify drivers licenses at airports or federal facilities and combined with travel, financial, or watch list information, meaning that its errors and problems could transform from employment issues to travel and other fundamental freedoms. Division, Office of Special Counsel for Immigration Related Unfair Employment Practices at (TDD: ) or Office of Special Counsel:

8 Conclusion E-Verify Problems Database Flaws Potential for Discrimination Security, Identity Theft, and Privacy Concerns Human Error Nationwide Implementation What Advocates Can Do to Protect Vulnerable Workers Resist efforts in Congress to mandate E-Verify. P P Education Advocates should encourage workers to report any discrimination and misuse of P E-Verify Conclusion In California, places like San Bernardino County, Riverside County and San Diego County have mandated, or are planning to mandate, E-Verify. Farmers advocates in California, including the United Farmworkers Union and Farmworker Justice, have long railed against the system and its impact on the state s $36.6 billion agricultural industry. Undocumented and seasonal farmworkers make up roughly 80% of the state s labor force. The Service Employees International Union (SEIU), calls E-Verify the wrong solution at the wrong time, given the number of jobs that could be lost due to the system s problems in the contet of an economic recession. The ACLU of California urges our leaders in the state as well as local governments, such as San Diego County, to reject imposition of a mandatory electronic verification system. Use of this system will cause great harm to employers across the state and to lawful workers and their families while doing little to dissuade undocumented workers from finding employment. There is enough evidence that the system s negative impact on American workers remains significant, while the potential gains are still at best, a mirage. 1 Employers are required to complete a Form I-9 Employment and Eligibility Verification for all newly hired employees to verify their identity and authorization to work in the United States. 2 How Errors in E-Verify Databases Impact U.S. Citizens and Lawfully Present Immigrants, National Immigration Law Center 2 (Feb. 2011), USCs pdf. 3 National Immigration Law Center, supra note 2. 4 AB 1236 (Fong): Keeping E-Verify out of California, California Immigrant Policy Center (n.d.), available at (follow E-Verify Fact Sheet hyperlink). 5 Findings of the E-Verify Program Evaluation, Westat Corporation, -i (Dec. 2009), available at (submitted to the U.S. Department of Homeland Security). 6 Chamber of Commerce v. Whiting, 131 S. Ct. 1968, 1990, (2011). 7 Written statement of the Civil Liberties Union Before the U.S. House Judiciary and the Subcommittee on Immigration Policy and Enforcement, February 10, U.S. GOV T ACCOUNTABILITY OFFICE, supra note 5, at Id. 10 National Immigration Law Center, supra note E-Verify, Department of Homeland Security (May 13, 2011), gc_ shtm. 12 Jason Arrevelo, Free E-Verify May Cost Small Businesses $2.6 Billion: Insight, Bloomberg, Jan.28, 2011, available at Cost%20Small%20Business%20$2_6%20Billion_%20Insight.pdf. 13 Id. 14 See, e.g., Statement of the U.S. Chamber of Commerce, Hearing on Emp t Eligibility Verification Sys. (EEVS) and the Potential Impacts on the Soc. Sec. Admin. s (SSA s) Ability to Serve Retirees, People with Disabilities, and Workers before H. Subcomm. on Soc. Sec., (2008) (statement of Mitchell C. Laird, Esq., President, MCL Enters. Inc., on behalf of the U.S. Chamber of Commerce) available at testimony/080506laird_eevs.pdf. See also Chamber of Commerce v. Whiting, 131 S. Ct. 1968, (2011) (where the U.S. Chamber of Commerce argued, among other things, against the mandatory use of E-Verify in Arizona). 15 Immigrants in the San Diego Region (San Diego County), California Immigrant Policy Center (2010), available at (follow San Diego hyperlink). 16 Westat Corporation, supra note 5, at Eric Larson, Eec. Director of the San Diego Cnty. Farm Bureau, Speech to the Fallbrook Tea Party on Immigration Reform (Mar. 8, 2011), available at TeaParty.pdf. 18i Phil Willon, Conservative Inland Empire Cities Crack Down on Illegal Workers, Los Angeles Times, Feb. 14, 2011, 19 Interview with Vallarta Employee, in Escondido, Cal. (Jun. 1, 2011). 20 Daniel Gonzalez, Illegal Workers Manage to Skirt Arizona Employer-Sanctions Law, Arizona Republic, Nov. 30, 2008, 21 California Immigrant Policy Center, supra note 18. Endnotes 22 8 U.S.C. 1324(a)(h)(2) (2011) Accessed on August 24, Accessed on August 24,