In 2007, after a decade of trial, error, and testing, DHS established e-Verify. It grants electronic access via computer to governmental data on social security and alien numbers of employees hired in the U.S. This was intended as a double-check on the information provided by new hires who filled out I-9 forms. See more information on I-9 procedures and forms. The program has the following features and purposes:
Federal contracts worth more than $100,000 must include a clause requiring contractors to use E-Verify. This will certify the employment eligibility of any new or current employees who will likely work on the contract. This is an expansion of the use of e-Verify, which until now has only been used for new hires only, consistently with I-9 practice. As in other e-Verify uses, the rule also requires contractors to use E-Verify new hires, even if they will not work on a federal government contract. Contracts that were in existence and had a term lasting more than six months from rule enactment can be retrofitted by agencies to add the requirement, but only if the contractor agrees. The rule was adopted to implement a Bush administration Executive Order, which the Obama Administration had not rescinded but simply delayed implementing, following a legal challenge brought on behalf of contractors, which the Government won. That led to a final rule to implement the executive order.
The Rule has been viewed by some as a first step to making eVerify mandatory upon private industry as a matter of federal policy and law. The scope of the executive order is expansive. According to one commentator, "Interestingly, employers in the health care business using the Medicare program, janitorial services providing services to courts, universities getting federal student loans for its students or grants for some of its projects and programs, companies in the defense industry, and even contractors serving food in cafeterias in any government agency will be considered government contractors and will have to comply with this order." The text of the Executive Order as amended can be viewed here. A press release from the Department of Homeland Security reported the official designation of E-Verify for this purpose. Federal agencies have already used eVerify for their own federal workforce requirements. Contractors were reported to be against plans to impose e-Verify upon them. See a report on the differences between the proposed and final versions of the rule and an analysis of the system's possible shortcoming.
The feature of the new E-Verify contractor rule that existing employees assigned to Government contracts be verified (or reverified) through e-Verify before beginning work on the government contract raises a distinct possibility that federal contractors may try to reverify all existing employees rather than try to isolate those who may be picked eventually for a particular contract. This practical consideration could contradict anti-discrimination provisions of existing law concerning I-9 practice.
If you are a federal contractor who is unsure of the requirements for employment verification of existing employees or an employee of such a contract with a question about employment discrimination, please contact Messing Law Offices for a free seven minute telephonic consultation or to schedule an initial consultation.
A listing of the top 100 federal contractors can be viewed here. Click on a contractor to view the reported number of employees for that contractor.
When used with I-9 electronic generation, signature and storage, which are authorized by 2006 DHS interim rules, the electronic verification system is a useful tool to enable all-electronic workflows, coupling instant database checks with a host of automated features that can be built into computerized systems like, for example, automated reminders for reverification upon expiration of employment authorizations, and centralized management of I-9 compliance programs at scattered geographical locations of large companies. Many of the criticisms of the past against e-Verify seem to have been corrected.
In a contrary move, Illinois passed a Right to Privacy at Work Act, effective January 1, 2008, 820 ILCS ("Illinois Compiled Statutes") 55/12. which forbade employers to use e-Verify.
Both developments: mandating and forbidding e-Verify led to litigation in federal court challenging the moves. The state and federal authorities won in both instances.
Consult updates on E-Verify Litigation.
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