Add §219-b, Lab L; add §99-z, Gen Muni L; amd §296, Exec L
Prohibits 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 and prohibits municipalities from requiring employers to use the federal electronic employment verification system.
STATE OF NEW YORK
________________________________________________________________________
568
2023-2024 Regular Sessions
IN ASSEMBLY
January 9, 2023
___________
Introduced by M. of A. BURGOS -- read once and referred to the Committee
on Labor
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 requir-
ing employers to use the federal electronic employment verification
system; and to amend the executive law, in relation to defining unlaw-
ful discriminatory practices with regards to the electronic employment
verification system
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. This act shall be known and may be cited as the "Employee
2 Privacy Act".
3 § 2. The labor law is amended by adding a new section 219-b to read as
4 follows:
5 § 219-b. Restrictions on use of employment verification system. 1. (a)
6 Except as required by federal law or as a condition of receiving federal
7 funds, it shall be unlawful for an employer, or any other person or
8 entity to use the federal electronic employment verification system
9 known as E-Verify and any other succeeding electronic employment verifi-
10 cation system to check the employment authorization status of an exist-
11 ing employee or an applicant who has not been offered employment at a
12 time or in a manner not required under subsection (b) of Section 1324a
13 of Title 8 of the United States Code or not authorized under any federal
14 agency memorandum of understanding governing the use of a federal elec-
15 tronic employment verification system.
16 (b) Nothing in this section shall prohibit an employer from utilizing
17 the federal E-Verify system, in accordance with federal law, to check
18 the employment authorization status of a person who has been offered
19 employment.
20 (c) Upon initial enrollment in an electronic employment eligibility
21 verification system, an employer enrolled in E-Verify or any other
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD00612-01-3
A. 568 2
1 federal electronic employment eligibility verification system must
2 attest, under penalty of perjury, on a form prescribed by the department
3 available on the department's website:
4 (i) that the employer has received the E-Verify training materials
5 from the department of homeland security, and that all employees who
6 will administer the program have completed the E-Verify computer-based
7 tutorials and all other required training materials in accordance with
8 federal regulations; and
9 (ii) that the employer has posted the notice from the department of
10 homeland security indicating that the employer is enrolled in the E-Ver-
11 ify program and the anti-discrimination notice issued by the Employee
12 and Immigration Rights Section, Civil Rights Division, U.S. Department
13 of Justice in a prominent place that is clearly visible to both prospec-
14 tive and current employees. The employer must maintain the signed
15 original of the attestation form prescribed by the department, as well
16 as all required training certificates of completion, including compu-
17 ter-based tutorials certificates, and make them available for inspection
18 or copying by the department at any reasonable time.
19 (d) It is a violation of this section for an employer enrolled in an
20 employment eligibility verification system, including the E-Verify
21 program or a successor federal electronic employment verification
22 program, to:
23 (i) fail to display the notices supplied by the department of homeland
24 security and the employee and immigration rights section in a prominent
25 place that is clearly visible to both prospective and current employees;
26 (ii) to allow any employee to use an electronic employment eligibility
27 verification system prior to having completed all required computer-
28 based tutorials;
29 (iii) to fail to take reasonable steps to prevent an employee from
30 circumventing the requirement to complete the computer-based tutorials
31 and/or all other training requirements by assuming another employee's
32 E-Verify user identification or password;
33 (iv) to use the employment eligibility verification system to verify
34 the employment eligibility of job applicants prior to signing an employ-
35 ment contract or to otherwise use the employment eligibility verifica-
36 tion system to screen individuals prior to signing a contract of employ-
37 ment and prior to the completion of a Form I-9;
38 (v) to terminate an employee or take any other adverse employment
39 action against an individual prior to receiving a final nonconfirmation
40 notice from the social security administration or the department of
41 homeland security;
42 (vi) to fail to notify an individual, in writing, of the employer's
43 receipt of a tentative nonconfirmation notice, of the individual's right
44 to contest the tentative nonconfirmation notice, and of the contact
45 information for the relevant government agency or agencies that the
46 individual must contact to resolve the tentative nonconfirmation notice
47 or to fail to provide such tentative nonconfirmation notice in accord-
48 ance with subdivision two of this section; and
49 (vii) to fail to safeguard the information contained in the employment
50 eligibility verification system, and the means of access to the system
51 (such as passwords and other privacy protections). An employer shall
52 ensure that the system is not used for any purpose other than employment
53 verification of newly hired employees and shall ensure that the informa-
54 tion contained in the system and the means of access to the system are
55 not disseminated to any person other than employees who need such infor-
A. 568 3
1 mation and who have been authorized to perform verification responsibil-
2 ities in accordance with this section.
3 2. Upon using the federal E-Verify system to check the employment
4 authorization status of a person, if the employer receives a tentative
5 nonconfirmation issued by the social security administration or the
6 United States department of homeland security, which indicates the
7 information entered in E-Verify did not match federal records, the
8 employer shall comply with the required employee notification procedures
9 under any memorandum of understanding governing the use of the federal
10 E-Verify system. The employer shall furnish to the employee any notifi-
11 cation issued by the social security administration or the United States
12 department of homeland security containing information specific to the
13 employee's E-Verify case or any tentative nonconfirmation notice. The
14 notification shall be furnished as soon as practicable within 10 busi-
15 ness days.
16 3. (a) Any claim that an employer refused to hire, segregated, or
17 acted with respect to recruitment, hiring, promotion, renewal or employ-
18 ment, selection for training or apprenticeship, discharge, discipline,
19 tenure or terms, privileges, or conditions of employment without follow-
20 ing the procedures of the employment eligibility verification system,
21 including the E-Verify program, may be brought under section two hundred
22 ninety-six of the executive law.
23 (b) It is a violation of this section for an individual to falsely
24 pose as an employer in order to enroll in an employment eligibility
25 verification system or for an employer to use an employment eligibility
26 verification system to access information regarding an individual who is
27 not an employee of the employer.
28 4. In addition to other remedies available, an employer who violates
29 this section shall be liable for a civil penalty of not less than ten
30 thousand dollars for each violation of this section. Each unlawful use
31 of the E-Verify system on an employee or applicant shall constitute a
32 separate violation.
33 5. This section is intended to prevent discrimination in employment
34 rather than to sanction the potential hiring and employment of persons
35 who are not authorized for employment under federal law.
36 § 3. The general municipal law is amended by adding a new section 99-z
37 to read as follows:
38 § 99-z. Use of employment verification system. It shall be unlawful
39 for the governing board of a city, town or village or any municipal
40 corporation to adopt a resolution, ordinance or local law requiring
41 employers to use the federal electronic employment verification system
42 known as E-Verify; provided, however, that nothing in this section shall
43 be construed to prohibit an employer from using the federal electronic
44 employment verification system when required by federal law or as a
45 condition of receiving federal funds or to check the employment authori-
46 zation status of a person who has been offered employment.
47 § 4. Subdivision 1 of section 296 of the executive law is amended by
48 adding a new paragraph (i) to read as follows:
49 (i) For an employer participating in the E-Verify program, as author-
50 ized by 8 U.S.C. 1324a, to refuse to hire, to segregate, or to act with
51 respect to recruitment, hiring, promotion, renewal of employment,
52 selection for training or apprenticeship, discharge, discipline, tenure
53 or terms, privileges or conditions of employment without following the
54 procedures under the E-Verify program or a successor program.
55 § 5. This act shall take effect immediately.
