BILL NUMBER: S1802
SPONSOR: RAMOS
 
TITLE OF BILL:
An act to amend the labor law, in relation to prohibiting employers from
using the federal electronic employment verification system to check the
employment authorization status of an existing employee or an applicant
who has not been offered employment; to amend the general municipal law,
in relation to prohibiting municipalities from requiring employers to
use the federal electronic employment verification system; and to amend
the executive law, in relation to defining unlawful discriminatory prac-
tices with regards to the electronic employment verification system
 
PURPOSE:
This bill prohibits employers from using the federal electronic employ-
ment verification system to check the employment authorization status of
an existing employee or an applicant who has not been offered employment
and requires employees to protect the privacy of potential employees for
which the employer is using a federal electronic employment verification
system.
 
SUMMARY OF PROVISIONS:
Section 1. Labor law is amended by adding a new section 219-b, the
Employee Privacy Act. Subsection A prevents employers from using E-Veri-
fy to check the status of an existing employee or on an applicant who
has not yet been offered employment. Subsection B expresses that nothing
in this section shall prohibit an employer from utilizing the federal
E-Verify system to check the employment authorization status of a person
who has been offered employment. Subsection C describes the steps
employers enrolled in the E-Verify system shall take to ensure compli-
ance with all federally required training courses and tests related to
E-Verify and requires the employer to post notices in the workplace
indicating enrollment in E-Verify as well as a federal antidiscrimi-
nation notice. Subsection D makes it a violation of this Act to fail to
display notices by the DHS in a prominent place; to allow any employee
to use E-Verify without having completed all required training; to fail
to take reasonable steps to prevent an employee from circumventing the
training requirements; to use E-verify on job applicants prior to an
offer of employment; to terminate an employee or take any other adverse
employment action against an individual prior to receiving a final
nonconfirmation notice; to fail to follow the proper procedure regarding
tentative nonconfirmation notices; to fail to safeguard the information
contained in E-Verify and the means to access that system.
Subsection 2 requires employers to notify potential employees of a
tentative non-confirmation as soon as practicable within ten days.
Subsection 3 renders any claim that an employer refused to hire, segre-
gated, or acted with respect to recruitment, hiring, promotion, renewal
or employment, selection for training or apprenticeship, discharge,
discipline, tenure or terms, privileges, or conditions of employment
without following the procedures of the E-verify system may be brought
under section 296 of the New York State Human Rights Law. It is a
violation of this section for an individual to falsely pose as an
employer in order to access information through E-Verify. This
subsection also establishes a minimum civil penalty of ten thousand
dollars for each violation of this section.
Subsection 4: establishes a civil penalty of not less than ten thousands
dollars for each violation of this section. Subsection 5 specifies that
this section of law is intended to prevent discrimination in employment
rather than to sanction the potential hiring and employment of persons
who are not authorized for employment under federal law.
Section 3 adds a new section 99-x to general municipal law to preempt
municipalities from requiring local use of E-Verify, provided that noth-
ing in this section shall be construed to prohibit an employer from
using E-Verify when required by federal law or as a condition of receiv-
ing federal funds or to check the employment authorization status of a
person who has been offered employment.
Section 3. This section amends general municipal law is amended to
include 99-x to deem E-verify unlawful.
Section 4 adds paragraph (i) to executive law section 296 subdivision 1
to include unlawful use of E-verify as a discriminatory practice.
Section 5. Effective date.
 
JUSTIFICATION:
Electronic Verification System (E-Verify) is a federal program, created
through the 1996 Immigration Reform and Control Act. E-Verify provides
employers with the ability to check their employees' immigration status.
Currently, New York State does not require employers to use E-verify.
However, employers can voluntarily use the program, and municipal
governments can opt to require employers to use the system. If the
E-verify system questions an employees' immigration status the employer
will then receive a TNC ("tentative non-confirmation") notice.
As mandated by law, employers must provide employees adequate time to
challenge a TNC notice. A USC1S-commissioned study found that 83 percent
of erroneous FN-Cs ("final non-confirmations") occurred because an
employer failed to notify an individual of a TNC.
This bill reiterates employers' obligation to notify their employees of
a TNC and will fine employers no less than $10,000 for failing to
provide notice. Also, this bill disallows municipalities from passing
ordinances requiring employers to use the e-verify system.
 
FISCAL IMPACT:
TBD
 
EFFECTIVE DATE:
This act shall take effect immediately.

Statutes affected:
S1802: 296 executive law, 296(1) executive law