New Employer Compliance Obligations Take Effect in Virginia and California

In California and Virginia, employers are subject to new immigration-related obligations that take effect in the near future.

State E-Verify Provisions Take Effect in Virginia

Beginning December 1, 2013, employers in the Commonwealth of Virginia with more than an average of 50 employees in a 12-month period must register and participate in the federal E-Verify program if entering into a contract worth at least $50,000 with any agency of the Commonwealth. Pursuant to House Bill 1859, affected employers must use E-Verify to check the identity and work authorization of newly hired employees performing work pursuant to a qualifying contract.

Failure to comply with the new law may result in debarment from contracting with any agency of the Commonwealth for a period of up to one year. The debarment will cease when the employer registers and participates in E-Verify.

Virginia joins sixteen other states that already require employers and at least some state contractors doing business in the state to participate in E-Verify, including Alabama, Arizona, Colorado, Georgia, Florida, Indiana, Louisiana, Minnesota, Mississippi, Missouri, Nebraska, North Carolina, Pennsylvania, South Carolina, Tennessee, and Utah.

California Broadens Anti-Retaliation Protections for Foreign Workers

Beginning January 1, 2014, employers in California will be subject to several new laws that limit adverse employment actions against foreign workers who change their personal information, engage in whistleblower activity or attempt to exercise a right under California’s labor laws.

New Assembly Bill (AB) 263 prohibits employers from terminating or taking other adverse action against an employee for updating his or her personal information, unless the change relates to a skill, qualification or knowledge required for the job. This provision may limit the ability of an employer to terminate the employment of a foreign worker who provided false documents during the Form I-9 employment verification process and later offers new documentation of his or her authorization to work. After January, companies are encouraged to consult with their Fragomen attorney and employment law counsel before terminating a California employee in this circumstance.

AB 263 and Senate Bill (SB) 666 prohibit employers from taking adverse action against employees who attempt to exercise a right under California’s labor laws. AB 263 penalizes employers who engage in unfair immigration-related employment practices, such as requiring more or different documentation during the Form I-9 employment verification process or improperly using E-Verify to check an employee’s work eligibility, in retaliation for the exercise of workplace right. SB 666 penalizes employers who report or threaten to report the immigration status of an employee or an employee’s family member to government authorities in retaliation for the employee’s exercise of a right under state or local labor laws. Performing Form I-9 obligations or taking action at the direction or request of a federal agency are exempted. Penalties for violations of SB 666 include fines and suspension or revocation of a business license.

If you have any questions, please contact your designated Fragomen professional.