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Can employers reconcile divergent requirements under California and federal law?
Effective Jan. 1, 2015, California passed Assembly Bill 60 (AB60) which allows the Department of Motor Vehicles (DMV) to issue a driver’s license to any person, which could include an undocumented person, who cannot establish their legal presence in the U.S. but otherwise meets licensing requirements to drive a motor vehicle. In the first six months alone, 442,000 of these so-called “AB60 driver licenses” were issued by the California DMV, creating concern among employers that a contradictory standard is being hoisted upon their backs.
On the one hand, employers are required under federal law to verify the identity and authorization to work legally in the U.S. of each new employee within three business days of hire through examination of certain documents identified in the Form I-9 process. Monetary penalties apply to employers who have actual or constructive knowledge that the employee is unauthorized to work and continues to employ them, ranging from $375 to $16,000 per violation. Criminal penalties are also possible. The AB60 driver’s license includes language that does not establish eligibility for employment: on the front it states, “Federal Limits Apply;” on the back, “This card is not acceptable for official federal purposes. This license is issued only as a license to drive a motor vehicle. It does not establish eligibility for employment, voter registration, or public benefits.” Arguably, when an AB60 driver’s license is presented by an employee, the employer understands that the AB60 license was given because he or she could not establish legal presence in the U.S., and therefore has constructive knowledge that the employee or applicant is undocumented and/or without authorization to work in the U.S.
Notwithstanding, AB60 mandates that employers cannot discriminate against an employee or applicant because he or she holds an AB60 license, which includes the refusal to hire or to continue to employ someone because they hold an AB60 driver’s license. Many have wondered how employers can reconcile these two requirements under California and federal law.
In the wake of this new legislation, the United States Citizenship and Immigration Services (USCIS) recently clarified key points for employers faced with I-9 obligations and employees that present them with AB60 driver’s licenses.
According to USCIS, the language stating that the card is not acceptable for official federal purposes does not mean that the AB60 driver’s license can’t be used to establish identity for purposes of the Form I-9. In fact, employers must accept the AB60 driver’s license as such, so long as the license reasonably appears to be genuine and to relate to the individual. Documents establishing identity on the Form I-9 under “List B” are generally a driver’s license or identification card issued by a state containing a photograph or identifying the name, date of birth, sex, height, color of eyes and address.
Nevertheless, once the employee has presented a document to establish identity, he or she must also establish authorization to work in the U.S. through production of certain documents that are identified as “List C” documents or Documents that Establish Employment Authorization, such as an unrestricted Social Security card or birth certificate. USCIS clarified that the notations on the AB60 license such as “Federal Limits Apply” are not intended to prevent the use of the AB60 driver’s license for Form I-9 purposes. By contrast, USCIS has clearly instructed that an employer cannot accept a Social Security card that includes one of the following restrictions on the face of the card: (1) not valid for employment; (2) valid for work only with INS authorization; or (3) valid for work only with DHS authorization. If an employee presents such a restricted Social Security card, the employer may lawfully require the employee to present any other List C document the employee can present, or to present a List A document (as a reminder, the employer cannot tell the employee which documents to provide; rather, the employer can tell the employee which documents the employer cannot accept, such as the restricted Social Security card).
USCIS has clarified that an employer who accepts the AB60 driver’s license for identity does not, in and of itself, support a conclusion that the employer has actual or constructive knowledge that the employee is not authorized to work in the U.S., but cautions that the facts and variables specific to an individual’s case could result in a finding that the employer had actual or constructive knowledge that the employee was not authorized to work:
The clarifications by USCIS imply that the federal government does not expect employers to inquire into why an employee claiming employment eligibility has such a license, unless other factors exist which reasonably cause doubt in the employer’s mind. This language makes clear that there may be circumstances where acceptance of the AB60 driver’s license combined with other facts and circumstances may lead to a finding that the employer knew or should have known the undocumented worker was unauthorized to work in the United States.
Jennifer C. Terry is a partner in the labor and employment practice group at Arent Fox, based in the Los Angeles office. Nancy A. Noonan is a partner in the Washington, D.C., office.
Copyright 2015 © Arent Fox. All rights reserved.
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