Each unlawful E-Verify check can cost a California employer up to $10,000. Labor Code section 2814 bars running E-Verify on applicants before a job offer, and on current employees at a time or in a manner federal rules don’t require, unless federal law or a federal funding condition demands it. It also requires employers to hand over tentative nonconfirmation notices. Because every check counts as a separate violation, a companywide reverification project can turn into a large penalty claim, often paired with discrimination allegations.
What does Labor Code section 2814 prohibit?
Two kinds of checks. Section 2814(a)(1) makes it unlawful, “Except as required by federal law or as a condition of receiving federal funds,” to use E-Verify “to check the employment authorization status of an existing employee or an applicant who has not been offered employment” at a time or in a manner federal law doesn’t require or a federal memorandum of understanding doesn’t authorize.
The statute leaves the normal hiring use alone. Under subsection (a)(2), the section doesn’t stop an employer from using E-Verify, in accordance with federal law, to check “the employment authorization status of a person who has been offered employment.”
So the timing rule is simple to state. A company enrolled in E-Verify runs the check after the offer and after the federal employment eligibility form is completed, as the federal program contemplates. The federal verification rules themselves are in 8 U.S.C. section 1324a, which governs how employers verify work authorization at hiring. Screening applicants before an offer, or running a sweep of the existing workforce on the company’s own initiative, is where California law draws the line.
Which employers can lawfully check existing employees?
Those that federal law or a federal contract requires to do it. Some federal contractors are covered by the federal acquisition rules that require E-Verify, and some of those rules permit or require checking existing employees assigned to the contract. The statute’s opening exception, for checks “required by federal law or as a condition of receiving federal funds,” covers that situation.
The exception has to be read narrowly. A contractor whose federal clause reaches only employees working on the contract shouldn’t treat it as permission to check everyone in the company. A business with no federal contract that wants to reverify long-tenured workers after an anonymous tip has no exception to rely on. In both cases, the safer course is to confirm what the contract or regulation actually requires, in writing, before anyone logs into E-Verify.
What has to happen after a tentative nonconfirmation?
The employer has to follow the federal notice procedures and give the employee the paperwork. Section 2814(b) says that when an employer receives a tentative nonconfirmation, it “shall comply with the required employee notification procedures under any memorandum of understanding governing the use of the federal E-Verify system.”
The same subsection adds a California-specific delivery duty: “The employer shall furnish to the employee any notification issued by the Social Security Administration or the United States Department of Homeland Security containing information specific to the employee’s E-Verify case or any tentative nonconfirmation notice.” It has to be furnished as soon as practicable.
A tentative nonconfirmation is not a finding that the worker lacks authorization. It means the data entered didn’t match federal records, which can happen because of a name change, a data entry error, or an agency mistake. Taking adverse action before the employee has had the chance to contest it, as the federal program allows, invites both a federal compliance problem and a California discrimination claim.
How much exposure does a violation create?
Up to $10,000 per check. Section 2814(c) provides that “an employer who violates this section is liable for a civil penalty not to exceed ten thousand dollars ($10,000) for each violation of this section.” It then adds: “Each unlawful use of the E-Verify system on an employee or applicant constitutes a separate violation.”
That counting rule is what makes the statute dangerous. A single HR decision to run every current employee through the system, or to screen every applicant before an offer, produces one violation per person. The penalty is “In addition to other remedies available,” so a penalty claim can sit beside FEHA national origin or citizenship claims and, in some cases, PAGA allegations.
The statute also states its own purpose. Subsection (d) says it is “intended to prevent discrimination in employment rather than to sanction the potential hiring and employment of persons who are not authorized for employment under federal law.” Plaintiffs’ lawyers quote that sentence to frame a misuse claim as discrimination, and employers should expect the case to be pleaded that way.
| Conduct | What section 2814 says | Defense points to check |
|---|---|---|
| E-Verify check after a job offer, per federal rules | Expressly permitted under (a)(2) | Offer date, eligibility form date, and E-Verify case date in the right order |
| Pre-offer screening of applicants | Unlawful unless federal law or funding requires it | Whether any federal requirement actually applied |
| Reverifying current employees | Unlawful unless required by federal law, funding, or the federal MOU | Text of the federal contract clause and which employees it covers |
| Failing to give the employee a tentative nonconfirmation notice | Violates (b) | Proof of delivery and the date it was given |
What tends to trigger these claims?
Usually an internal event, not an outside audit. A new HR manager decides the company should “clean up” its workforce. A payroll vendor flags mismatched Social Security numbers and someone runs those employees through E-Verify to check. A company acquires another business and decides to reverify the acquired workforce. Each of those can lead to checks the statute doesn’t allow.
No-match letters and mismatch reports are a recurring problem. They tempt employers to act quickly, but reacting by running existing employees through E-Verify, or by demanding new documents from only some workers, can create liability under section 2814 and California’s separate rules on immigration-related practices. Talking to counsel before acting on a mismatch report is cheap compared with defending the claim afterward. It’s also worth asking whether the mismatch has an innocent explanation, like a recent marriage or a transposed digit, before treating it as an authorization problem at all.
When an E-Verify problem surfaces
- Place the E-Verify case records, federal eligibility forms, offer letters, and the emails and texts discussing the checks under a litigation hold.
- Calendar the response date on any demand, PAGA notice, or agency inquiry, and look for an arbitration agreement and an EPLI policy with notice terms.
- Identify who decided to run the checks and who ran them, and don’t take action against any affected worker without counsel’s review.
- Build a timeline for each check: offer date, eligibility form completion, E-Verify submission, and any tentative nonconfirmation notice given.
- Have counsel review any federal contract clause or program requirement that might bring the checks within the statute’s exception before responding.
E-Verify claims often travel with discrimination allegations. The firm’s California employment defense page describes how those combined cases are handled.
E-Verify questions California employers ask
Is E-Verify mandatory for California employers?
Not under California law for most private employers. Enrollment is voluntary unless a federal contract, a federal regulation, or a specific program requirement makes it mandatory. Section 2814 doesn’t require anyone to enroll. It controls how an enrolled employer uses the system, permitting checks after a job offer and barring checks at other times unless federal law or a funding condition requires them.
Can we run E-Verify on an applicant before making an offer?
Not unless federal law or a federal funding condition requires it. Section 2814 makes pre-offer checks unlawful for employers that aren’t under such a requirement, and each check counts as a separate violation. The safer practice is to extend the offer, complete the federal eligibility form, and then submit the E-Verify case within the time the federal program sets.
Does section 2814 create a private right to sue?
The statute imposes a civil penalty but doesn’t spell out who may recover it. Claims for Labor Code civil penalties often arrive through PAGA, which lets an aggrieved employee seek penalties on behalf of the state after giving notice. The same facts may also support FEHA discrimination claims. Whether a particular claim can be brought, and by whom, depends on how it’s pleaded.
What if a manager ran the checks without HR approval?
The company is still the employer that used the system, so the violation is usually attributed to it. That doesn’t end the analysis. Evidence that the company had a written E-Verify policy, trained the people with system access, and stopped the checks when it learned of them helps on penalty amount and on any claim that the checks were discriminatory.
If your company is accused of misusing E-Verify
If your company has received a demand or PAGA notice claiming it ran E-Verify on applicants or current employees, the timing of each check and any federal requirement behind it usually decide the exposure. Rosenberger + Kawabata represents employers defending employment lawsuits and claims through its business litigation practice, including claims involving E-Verify and immigration-related employment practices. Contact Rosenberger + Kawabata online for a confidential consultation, or call (310) 894-6921.
Sources
The statute is Labor Code section 2814, added by Stats. 2015, ch. 696 (AB 622), effective January 1, 2016. The federal verification statute is 8 U.S.C. section 1324a.
This post is general information about California and federal employment law as of November 7, 2026. It is not legal advice, and reading it does not create an attorney-client relationship. Employment statutes, regulations, and court decisions change often, and the outcome of any claim depends on its facts. Past results do not guarantee future outcomes.