Articles Posted in E-Verify

In Lozano v. City of Hazelton, the Third Circuit Court of Appeals ruled that the Hazelton, Pennsylvania ordinances regarding illegal aliens were unconstitutional.  The ordinances, which had been enjoined by a federal court before taking effect, were designed to keep illegal aliens out of the town by penalizing employers who employed them and landlords who rented to them.  The court found that the ordinance conflicted with federal immigration laws and therefore violated the Supremacy Clause. The ordinances operated in part through the sanction of suspending the business license of any person or entity who hired a worker not authorized to work in the U.S.

The court explained that the Immigration Reform and Control Act of 1986 (“IRCA”), the federal law that first prohibited the employment of undocumented workers, was carefully designed to minimize the burdens imposed on both employers (who did not want to be involved in the enforcement of federal immigration laws) and on authorized workers, who might erroneously be perceived as illegal aliens and discriminated against. Accordingly, IRCA limited the types of complaints against employers that the government would investigate, the measures that employers would have to take to assure that workers are authorized to work in the U.S., and the workers to which it would apply (IRCA applies to employees only, not to independent contractors). Congress also included an anti-discrimination provision in IRCA to reduce the burden imposed on authorized workers.

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Yesterday, September 8, 2009, was the official start date for the mandatory E-Verify program for federal contractors and subcontractors. The U.S. Citizenship and Immigration Services has just created and published a Supplemental Guide for Federal Contractors to explain the new requirements.

user manual

The Guide provides background information, describes the E-Verify program, and provides fairly detailed information about compliance, including timelines and charts. It is user friendly and I recommend that all employers with federal contracts or subcontracts read it to find out whether they are subject to the new rule, and if so, to learn the basics about how to comply. Federal contractors and subcontractors who are subject to the rule but who do not comply risk loss of current contracts and debarment (loss of their ability to obtain future federal contracts and subcontracts).

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The start date for the mandatory E-Verify program for federal contractors and subcontractors is now set for September 8, 2009. Further postponements are not expected. The U.S. Citizenship and Immigration Services has posted a Frequently Asked Questions page to help contractors understand the new requirements, and I highly recommend that all employers with federal contracts or subcontracts read it. All employers are permitted to participate in E-Verify, but federal contractors and subcontractors who do not comply risk debarment (loss of their ability to obtain federal contracts and subcontracts).

Related Posts:

OFCCP Delays the Start Date for Mandatory E-Verify Yet Again

Responding to a lawsuit, the OFCCP previously agreed to delay implementation of the new mandate that federal contractors use E-Verify.  The lawsuit, as you may recall from previous posts, was filed by the Society for Human Resource Management (SHRM), and other organizations. E-verify

The original effective date of the mandatory E-Verify requirement was January 15, 2009. That date subsequently was changed to February 20, 2009.  And, today, it appears that the start date for the mandatory use of E-Verify has been delayed again–this time until May 21, 2009, to allow the new administration time to review and evaluate the rule and the arguments against conversion to a fully mandatory E-Verify system.

Mandatory use of E-Verify has been on the agenda for several months.  Today in my inbox I found a message from the Society for Human Resource Management (SHRM), saying that SHRM, the U.S. Chamber of Commerce, Associated Builders and Contractors, the HR Policy Associate, and the American Council on International Personnel had filed suit in December in the United States District Court for the District of Maryland to stop the OFCCP from requiring federal contractors and subcontractors from using E-Verify.  E-Verify Logo RGB MASTER

On Thursday, January 8, the U.S. Department of Justice agreed to delay the effective date of the new requirement from January 15, 2009, until February 20, 2009, so that the court can conduct a hearing on the merits of SHRM’s claims. The plaintiff organizations argue in their 28-page December 23, 2008, complaint that the government has exceeded its authority by requiring government contractors to follow the new requirements to use E-Verify for not just new employees but also previously verified current employees.

For background on the E-Verify program, see:

The E-Verify program took center stage when federal contractors were mandated to use the system in June. The mandatory E-Verify took many federal contractors by surprise and put other employers on high alert.  The federal government issued a proposed rule on June 12, 2008, and solicited public comments. About 1,600 comments were submitted.

On Friday, November 14, 2008, the final rule for the E-Verify program was published in the Federal Register, together with summaries of the public’s comments and the government’s responses to the comments. To see the rule without the comments, go to the end of the document, but the comments and responses are helpful to the big picture.everify USHS

Here’s the bottom line. 

From the U.S. Department of Justice (DOJ), comes a new published Guidance relating to the use of E-Verify.  The recent, though short-lived excitement over the use of E-Verify for employment verification has now quieted down. Private-sector employees are back to the voluntary use of the system as a method for confirming that newly hired employees are authorized to work in the country.   DOJ

One of the concerns that was raised with the E-Verify program was its potential effect on discrimination in the workplace.  If, as a result of using E-Verify, an employer receives a no-match letter or a “tentative” no-match letter, he cannot terminate the employee without first trying to resolve the mismatch.  Failure to work with the employee to determine the cause of the mismatch could result in a claim for national-origin discrimination.

Anticipating the likelihood that employers would not want to engage in the additional steps of “working with the employee,” the DOJ issued guidelines outlining the step that an employer must take upon receiving information about a potential mismatch.  (See Antidiscrimination Guidance Concerning the DHS No-Match Rule).

William W. Bowser and Molly DiBianca (that’s me!) presented to the Delaware Contractors’ Association’s HR Committee today.  We spoke about the Employers’ Free Choice Act, the RESPECT Act, the Delaware Construction Industry Independent Contractors’ Act, E-Verify, and the recent FMLA amendment, the National Defense Authorization Act.  As promised, I’ll post a link to the slides and the handouts for members of the DCA and anyone else who may be interested to view and download. 

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Thanks to all of the attendees for participating.  The Human Resources Group, not surprisingly, was attentive, insightful and inquisitive with lots of great questions and comments.  Of the various topics discussed, though, it was clear that E-Verify was the show-stealer.  This, I think, is especially interesting, given that none of the participants are covered by the President’s recent executive order, which made use of the E-Verify program mandatory for federal contractors.  The reaction tells me that the construction industry is either (1) looking forward to utilizing the electronic verification system; (2) dreading it as a worst-case scenario; or (3) are curious about just what E-Verify really is and how they might potentially be affected. 

 

So, in follow-up, here are some helpful “Dos” and “Don’ts” for using E-Verify, published by the Office of Special Counsel for Immigration-Related Unfair Employment Practices (“OSC”):

 

DO

DON’T

Use program to verify employment of all new hires regardless of national origin or citizenship Use program selectively based on a “suspicion” that new employee or current employee may not be authorized to work in the U.S. or based on national origin.
Use program for new employees after they have completed the I-9 form Use program to pre-screen employment applicants
Provide employee with notice of tentative nonconfirmation promptly Influence or coerce an employee’s decision whether to contest a tentative nonconfirmation
Provide employee who chooses to contest a tentative nonconfirmation promptly with a referral notice to SSA or DHS Terminate or take adverse action against an employee who is contesting a tentative nonconfirmation unless and until receiving a final nonconfirmation
Allow an employee who is contesting a tentative nonconfirmation to continue to work during that period As an employee to obtain a printout or other written verification from SSA or DHS when referring that employee to either agency
Post required notices of the employer’s participation E-Verify and the antidiscrimination notice issued by OSC Ask an employee to provide additional documentation of his or her employment eligibility after obtaining a tentative nonconfirmation for that employee
Secure the privacy of employees’ personal information and the password used for access to the program Request specific documents in order to use E-Verify’s photo tool feature.

*available at usdoj.gov/crt/osc

And don’t forget to check back tomorrow for the PowerPoint slides and handouts.

Prior Related Posts about E-Verify: 

Attention Government Contractors!! You Are Being Ordered to Use E-Verify!

GAO Says Universal Mandatory E-Verify Will Be A Challenge

E-Verify is now mandatory for all federal contractors.  Pursuant to the executive order issued yesterday, federal contractors must use the E-Verify program to confirm the work eligibility of all employees currently working on a government contract, as well as all newly hired employees whether they are working on a government contract project or not.  The Executive Branch says that the E-Verify system will be able to handle this increasing demand.

E-Verify Logo RGB MASTER

But the new executive order isn’t the only new wrinkle in this quickly changing landscape. Several states (including Arizona, Mississippi, Idaho, Rhode Island, Minnesota and Oklahoma), have passed laws mandating use of the E-Verify system by some or all employer.  And there is legislation now pending in Congress that would require all U.S. employers to use the system to verify the employment eligibility of their employees.

The Government Accountability Office (GAO), which is the audit, evaluation and investigation arm of Congress, has just published a report, “Employment Verification:  Challenges Exist in Implementing a Mandatory Electronic Employment Verification System” on the issues presented by mandatory universal use of E-Verify. The report includes a very good overview of how E-Verify works and a helpful flow chart showing each step of the process.

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