Mandates on Checking Immigration Status of Workers Outlawed in California

Novato City Council candidate , who has made employment for documented U.S. citizens and the ouster of illegal aliens the focal point of his campaign, criticized the state of California for passing a new law that prohibits municipalities from mandating private employers to use the online immigration checking system known as E-Verify.

Ghigliotti, an attorney who has lived 40 years in Novato, is suing the city for its decision not to bring an E-Verify ordinance before voters despite the gathering of enough verified signatures to force a ballot measure.

Drafted by Assemblyman Paul Fong (D-Cupertino) and signed by Gov. Jerry Brown last week, the Employment Acceleration Act of 2011, or AB 1236, prohibits the state or a city, county or special district from forcing an employer to use the electronic employment verification system known as E-Verify except when required by federal law or as a condition of receiving federal funds.

“We have 49 states trying to remedy something at the federal level and California is dead-set on its own amnesty program,” Ghigliotti said.

E-Verify is a program of the U.S. Department of Homeland Security in partnership with the United States Social Security Administration. It enables participating employers to use the program to verify that employees are authorized to work in the United States. The city of Novato voluntarily uses E-Verify for the hiring of city employees but does not require the use of the online system for companies with which it signs contracts.

Ghigliotti has spent more than two years the city of Novato to change hiring practices of contracted workers to make sure anybody making a single cent of taxpayer money via city coffers is a legal resident of the United States. He maintains that there is no federal preemption on the E-Verify system and cited case law that supported his claim.

The Southern California cities of Murrieta, Temecula, Lake Elsinore, Wildomar and Menifee within the past two years.

The text of Fong’s AB 1236 cites reasons why E-Verify should not be mandated, including that the system doesn’t meet requirements for accurate verification, that it slows down the hiring process and that it increases the costs of doing business in a difficult economic climate. The act also argues that, with California’s high unemployment, the state should be “facilitating and incubating” job development and economic growth.

Ghigliotti said, “E-Verify has 99-percent first time accuracy, and most of those 1 percent are women who forgot to change their names when they got married.” He said an appeal effort is gaining ground already, but new legislature could be drawn up that does not specify E-Verify’s use for checking immigration status.

About 3,500 registered voters in Novato last year to have a referendum placed on a future ballot, but City Attorney Jeffrey Walter contended that the initiative was unconstitutional and convinced the Novato City Council not to act on it. This spring, in court.

Ghigliotti said he has until Dec. 9 to file a brief in the First District Court of Appeals in San Francisco regarding the lawsuit against the city. He requested a one-month extension because he is running for office.

“The city is wrong in what it did,” he said. “Does the council have the right to thwart the initiative process? Every step was taken properly to put the ordinance on the ball, so I think the answer is no.”

Walter said he believes the combination of the new state law, federal law and Duryee’s stance means the voter initiative issue won’t advance.

“My view is that legislation makes this lawsuit completely moot and there is no point in pursuing it further,” he said.

Click here for a story in the Los Angeles Times about the new law.

Toni McAllister of Murietta Patch contributed to this report.