Universal E-Verify requirement only a matter of time?

Like it or not, the future of employment law probably includes the E-Verify system for tracking the legal status workers, or something like it, for every business, according to a local attorney.

Grant Sovern, a partner in the Madison office of Quarles and Brady, said Congress has an E-Verify requirement in some of its immigration reform proposals, and it’s something all employers most likely will be required to use at some future point.

Until then, only firms doing business with the federal government, and some state governments, are required to use the system. “I think people in Congress would like to force every employer to use it, but the reality is they don’t have the bandwidth to have every single employer start using it all of the sudden,” Sovern said. “My own impression of public policy is that some day there will be a system that requires sort of the panacea that Congress wants to have — a way to know who is authorized to work in the United States, to have some database where they can finally tell.”

Based on Databases

E-Verify is a compilation of government data bases that attempts to ensure that the person applying for a job is the same person assigned to the Social Security number, and that the person is authorized to work in the United States. The system also examines various databases of the U.S. Bureau of Citizenship and Immigration Services.

In past years, a “no match” on the Social Security number has been a sign that someone is not authorized to work. “It used to be, five years ago and earlier, the Social Security Administration would send out letters every year to employers notifying them of people who had no matches,” Sovern explained. “It didn’t mean that a person was undocumented. It could mean they changed their name or they got married or wrote down the Social Security number wrong.”

The forerunner is a basic pilot program created by Congress in 1986 by the Immigration Reform and Control Act, which created the so-called I-9 form and made employers responsible for determining whether someone in their employ is authorized to work in the U.S. Employees still have to complete an I-9 form before someone can start work.

There was very little enforcement until 2007, when the government began to revamp the basic pilot program, later rebranding it E-Verify. At that point, people defeated the system by using a relative’s documents or buying fake documents on the black market.

“As long as the picture of me looks sort of like you, the employer had no idea that I was using somebody else’s full set of documents,” Sovern said, “and you didn’t even know the person in front of you was not authorized to work in the United States.”

But states eventually began to require it in various circumstances. Arizona, which earlier this year enacted a controversial immigration law only to see it challenged in the federal courts, is the only state in the nation to pass a law that says every business has to use E-Verify.

Colorado passed a law stating that if a business has state contracts, it must use E-Verify to determine the employment eligibility of every worker on the project.

Before leaving office, President Bush proposed a federal law requiring every company that has a federal contract has to use E-Verify, but the regulation was not finalized until Barack Obama became president.

Initially, Illinois did just the opposite of Arizona, forbidding employers from using E-Verify because they felt the information was so unreliable, it caused companies to discriminate against workers.

Sovern said they had plenty of reason to believe the data was “extremely bad,” citing a U.S. Chamber of Commerce estimate that it had a 10% to 15% false positive rate. Since that time, the reliability of the data has gotten better and Illinois employers are allowed to use it.

Wisconsin does not have a state E-Verify requirement or law, but Wisconsin businesses that have federal contracts must use it.

According to Sovern, it’s not particularly burdensome for most employers. They must register for it, and someone in the Human Resources Department has to go through an online tutorial. Every single new employee must produce documents to prove who they are, and fill out an I-9 form. Employers then enter that information into E-Verify’s electronic database. In 98% of the cases, they receive a message that says yes or no; in the other 2% of cases, they get a tentative non-confirmation (TNC), and the employee has to work out things with a federal agency and report back.

“It’s an added burden if you have a giant company,” Sovern hastened to add, “because it’s one more thing you have to do. The real burden for federal contracts is this executive order that the Obama administration signed that says they have to use it going forward, but you have to use it to ensure that all of your current employees who are working on that contract are authorized to work through E-Verify.

“So the employers have two choices on federal contracts. One is to run all their employees through E-Verify, or try to pick out which employees will be working on the contract, and then run them through E-Verify. We represent a company with 325,000 employees, and they could not figure out who would be working on the contracts and who wasn’t. So they had to run all their employees through it, and that was a major, major effort.”

If not handled correctly, one tentative non-confirmation can bring legal trouble in the form of an employment discrimination suit.

UW tracking

As the third largest procurer of federal research contracts, UW-Madison has gone through a complex E-Verify implementation, according to Deb Ahlsted, the university’s director of international faculty and staff services.

Ahlsted, who manages E-Verify for UW-Madison, said updating is an ongoing task, and although the UW has yet to experience a TNC, she has some words of wisdom for organizations in the public and private sectors. “Take it really, really seriously,” she counseled. “They are monitoring what is in the system.”

UW-Madison’s system attempts to identify everybody who working on a federal contract. The university’s Research-Sponsored Programs, or RSP, is the office that handles all grant awards and contracts, except for fee-for-services contracts. Here is how the university approached E-Verify:

Following a series of meetings, RSP computers were programmed to identify the Federal Acquisition Regulation (FAR) section of new contracts. Ahlsted receives an automatic, weekly e-mail to check the new contacts, and the university also has a system within payroll to see which personnel are employed on that contract. Ahlsted also has a standard e-mail that she sends out to an I-9 coordinator regarding the affected employees — UW implemented an electronic I-9 this summer — and then she runs everyone through the E-Verify system.

“Then a person in payroll, who is much more conversive with computers than I am, set up an Access database into which we have put every single person who has been identified as a person employed on a qualifying federal contract,” she explained. “And so we’ve got [categories and answers like] support work only, no. Substantial contract work, yes. Security clearance, no. Hired prior to 1986, no. Then we’ve got E-Verify results and E-Verify numbers so that everyone who has been identified in this database should we ever be audited.

“It’s been a significant challenge in terms of personnel time.”

Since Ahlsted has the UW’s information technology department to assist her, she did not have to hire an outside contractor, which is fortunate considering the state’s experience with delays and cost overruns on IT work. “If we had not been able to automate this, I don’t know how we would have done it, to be perfectly honest,” she said. “We have outposts all over the state. We have folks up at Trout Lake; We have them in various agricultural research stations all over the state. There is no way, without automation, that we could actually handle this.”

In the event an E-Verify check produced a TNC, that is not grounds for dismissal, she noted. “There are procedures that an employer must follow if they get a TNC,” she said. “You are supposed to keep the employee employed while it is being resolved. If it’s a Social Security number issue, there is a certain letter the employer has to send to the employee directing them to go to the local Social Security office to get it resolved.

“If it’s an authorization issue form Homeland Security, then there is another procedure they have to go through. We are required to terminate somebody [only] if they get final non-confirmation.”

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