Raising Arizona?

Mono County may not be heading down the same path as Arizona when it comes to enacting any broad legislation regarding undocumented persons living here, but it did take one step recently to ensure its workers have legal work status.

The item, requested by District 2 Supervisor Hap Hazard, was heard at the Aug. 17 adjourned Board meeting in Crowley Lake. Business owners and residents heard a presentation by County Counsel regarding E-Verify, as well as some proposed County policies or requirements for its usage.

Rudolph said E-Verify’s service, which taps a federal database to determine if you’re legally eligible for employment, is free. Employers both private and public can use it. Results can be instantaneous. At the most, it may take 24 hours. Sometimes the determination may read, “DHS [Department of Homeland Security] verification in progress,” meaning some records are not in electronic form and have to be checked by hand.” Prospective employees who receive a negative determination and dispute the E-Verify findings can also contest the process. The hitch, however, is that once a user signs up for E-Verify, i.e. Mono County, they agree to abide by the terms of use as outlined in the Memorandum of Understanding that accompanies it.

The service’s history dates back to the 1986 inception of the I-9 immigration status declaration form. “Produce a Social Security card and a drivers license and you’re done,” Rudolph illustrated, “or a Green Card and a passport … done.” I-9 isn’t without criticism, however; an employer can file the I-9 either not knowing or not caring that the documents submitted by the prospective employee are forged or otherwise false.

E-Verify is still technically a pilot program that went through several iterations before being released en masse to the country. In 1997 it was enhanced, and then updated again in 2008. In 2009, the fed required that all federal contractors have to use E-Verify. The system, Rudolph said, is hardly final, still being refined and tweaked.
Employers typically register their companies online, but can also contract with “designated agents,” who will run the verifications for them, should they not want to go through the whole process or have limited resources (staff, computer availability, etc.). Rudolph also cautioned that prescreening applicants is a no-no. You can only use it once you’ve either made an offer to hire or have actually hired an employee, AND you can’t retroactively check on existing employees already on payroll when you sign up for E-Verify.

Mandatory E-Verify checks apply to government subcontract holders of true government pass-through dollars of $100,000 or more, but there are no state mandates for its use in California, though Lancaster, Lake Elsinore, Temecula and Mission Viejo all use E-Verify.

Other states do have different forms of using E-Verify. Texas doesn’t require E-Verify up front, but does have other laws prohibiting employing undocumented workers that basically shepherds employers into using it. Arizona has an E-Verify statute, which has been part of its state code for many years.

The U.S. Supreme Court has taken up a lawsuit filed in District 9, which covers Arizona and Mono County, challenging state laws requiring use of E-Verify.

At the end of the presentation, the Board considered three options: 1. Enroll and use E-Verify to augment I-9 and background check services; 2. Revise County contract provisions to include language prohibiting hiring undocumented workers, even though Rudolph acknowledged that E-Verify wouldn’t necessarily apply to all workers; 3. Enact an ordinance that prohibits employing undocumented workers, and require E-Verify for all new employees, which would come with penalties for violations.

Some employers weren’t too keen on the more far-reaching options. “Sooner or later everyone’s going to have to get clearance from DHS or get forced out of business,” opined one businessman. “The government will tell you who to hire and who to fire.” Rudolph addressed that concern, pointing out that since 1986, federal law prohibits hiring of undocumented workers. “It’s essentially already telling you who you can and can’t hire,” Rudolph said.

That raised the questions of should not or could not any County contract be considered a new job and all hires be considered new hire? “You have to be a bona fide new employee to be considered a new hire,” Rudolph responded.
Still another employer said he thinks the current “liberal administration” in charge [in Washington, D.C.] has “watered down” E-Verify. “Given the unemployment situation in this country, jobs should be reserved for those who are authorized to work here,” he went on to say.

Rudolph added that one major flaw in the E-Verify system is a 3.3% false positive reading that has yet to be corrected. “I don’t want to see someone who’s got the right to work denied the ability to work,” Hazard said. “This isn’t an absolutely true profile of who has the right to work and who doesn’t. It’s not purely about being Hispanic or not, since there documented Hispanics at work and they should continue to be able to work.”

As to an ordinance that requires private contractors to participate, Board members seemed to agree they didn’t want the County to go there. “It’s a good thing for the County to verify that employees are here legally,” Supervisor Bob Peters commented. “I am, however, opposed completely to forcing private employers to register with a [potentially restrictive] federal program. Enforce the laws we have now, but I don’t want the program to grow into something that wasn’t intended.”

Chair Byng Hunt took that point further, wanting to make sure that Hispanics weren’t singled out. “I’m very pro legal immigration, but illegal status is irrespective of heritage,” he said, adding that 40,000 non-Hispanics cross the border illegally every year. “I have mixed emotions. Some of our undocumented workers have kids that are going to college here, they own property. There is a right way to be here and we should follow the letter of the law.” Hunt said he was in favor of signing up with E-Verify, but would like to research the other options more before considering them.

Farnetti agreed with the problems he said were inherent in imposing strict compliance on private employers. “California hasn’t endorsed the program and doesn’t require everyone to use it,” he said. “There are already too many mandates out there.” Supervisor Vikki Bauer agreed, suggesting a “phased approach,” starting with E-Verify enrollment and taking up the other two parts one at a time.

Most employers, however, seemed to favor some iron in the glove when it comes to independent contractors. “Put some wording in your contracts that basically says you’re giving us your word that our tax money is being spent on legal employees,” one said. “None of this ‘wink and a nod’ stuff that let’s them not look you in the eye. Make them stand behind their employees and state, ‘We’re all legal … everyone we’ve got out there is good.’

At the end of the item, the Board opted to go ahead with E-Verify registration and revising County contracts, but stopped short of requiring independent contractors to use E-Verify. Whether the County mandates its contractors use E-Verify is still up for further deliberation and research, some of which Rudolph indicated may come from the County’s experience while using the process.