Under a Presidential Executive Order that takes effect on January 15, 2009, most federal contractors and subcontractors must begin using the E-Verify system to verify the employment eligibility of new-hires and existing employees.
E-Verify is a free online system developed by the Department of Homeland Security’s U.S. Citizenship and Immigration Services (USCIS). Correctly implementing E-Verify into new hire practices has proven challenging for many employers but Imperative’s clients have additional tools available to make using E-Verify easier.
The Executive Order requires that federal contractors working on contracts of more than $100,000 awarded after January 15th must begin using E-Verify. Additionally, subcontractors with orders of more than $3,000 for services, supplies, or construction must also begin using E-Verify. Additionally, existing indefinite-delivery/indefinite-quantity contracts that will continue six months beyond January 15th will be modified to include this requirement. Besides the exemption for small-dollar contracts, there are a few other exemptions in the Executive Order.
E-Verify validates with the Social Security Adminstration that the name, date of birth, and social security number provided by the employee matches the SSA’s records. It also verifies with USCIS that the employee is authorized to work in the US.
To participate in E-Verify, employers must sign a Memorandum of Understanding with both the SSA and USCIS. They must also post notices in English and Spanish in a place where current and prospective employees will see them.
Previously, E-Verify could be used only on new hires, typically at the time when the employee’s Form I-9 is completed. Under the new regulations, current employees working on covered contracts must also be processed through E-Verify. In no circumstances, however, can employers process an individual through E-Verify prior to hire.
Many employers complain about the extensive tutorial each E-Verify user must complete. This often takes an hour to complete.
Using E-Verify also requires employers change their new hire procedures. For instance, employers must require that the identification item provided under List B on the I-9 include a photo. Incorrectly completed I-9 forms are one of the major sources of fines resulting from I-9 audits.
The I-9 information must then be entered into the E-Verify system. This creates the first challenge for employers. A single data-entry error can result in receiving a non-confirmation of the employee’s identity or confirmation to work, creating more work and headaches for employers.
When the information provided by the employee cannot be immediately verified with the SSA or USCIS, the employer must give the employee a Notice to Employee of Tentative Nonconfirmation. If the employee does not contest nonconfirmation (i.e., they admit that the information provided is not accurate), they must be terminated.
If the employee contests the nonconfirmation (i.e., they insist that the information they provided is correct and that they are eligible to work in the US), they are given eight government workdays to contact the SSA or DHS to resolve the problem.
Keeping up with the paperwork requirements and time deadlines is another challenge many employers face.
Imperative’s clients can avoid many of these headaches by naming Imperative their E-Verify designated agent and using i-9 Advantage, our interface with the E-Verify system. This system was built with our customers in mind and allows for online completion of the Form I-9, field validation to ensure that the forms are completed correctly, and step-by-step processing of any tentative nonconfirmations. Visit our I-9 verifications page or contact us for more information.
Mike’s guest on today’s podcast is Audrey Mross, a shareholder in the law firm of Munck Carter, where she leads the Labor and Employment Law section. Audrey has been practicing law since 1994 and was a human resources professional for over a decade before that, giving her a unique perspective as she helps her clients deal with their HR-related legal issues.
Audrey will be presenting her annual employment law update during the North Texas SHRM chapter’s November 18th luncheon in Denton, Texas.
For more information about Munck Carter, visit their website at www.munckcarter.com. Or contact Audrey at 972.628.3600.
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Mike Coffey: Hi. I’m Mike Coffey, President of Imperative Information Group. We’re an employment background screening firm dedicated to employers who can’t afford cheap background checks. If you’ve recognized the risk associated with each new person you allow in your organization, whether they’re an employee, a contractor, a temp, we should talk. Visit us online at ImperativeInfo.com or give me a call at toll free 877-473-2287. And now, welcome to the Imperative Podcast.
Mike Coffey: Our guest today is Audrey Mross, a shareholder in the law firm of Munck Carter where she leads the labor and employment law section. Audrey has been practicing law since 1994 and was a human resources professional for over a decade before that, giving her unique perspective as she helps her clients deal with their HR related legal issues. Audrey will be presenting her annual employment law day during the North Texas SHRN Chapter’s November 18th luncheon in Denton. Thanks for joining us, Audrey. What does 2009 hold for the HR profession?
Audrey Mross: Well there are some things that we already know we’re going to be looking at. One of those done deals is the amendments to the Americans with Disabilities Act. That’s already been signed off by President Bush, will take affect in January. So between now and that time, legal commentators and HR professionals will be huddling and trying to read the tea leaves and figure out what exactly is the effect of the changes to the law. And then on the other side, there are some things that we can get that we will probably be facing.
Probably one of the ones that people are talking about the most is the Free Choice Act. That’s a proposed federal bill which had some interesting bedfellows in terms of who’s for it and who’s against it. Oftentimes employers find themselves crosswise with the Department of Labor, but in this case they’re actually on the same page and even the Secretary of Labor has come out in speaking against the Free Choice Act. In a nutshell what it would provide is that it would no longer be necessary to hold an election at a place of employment to determine whether or not a union could be the collective bargaining agent for the employees in the collective bargaining group.
In the past, it’s been done through private ballot and if there was a simple majority then the union was in. Free Choice Act, however, would allow the union to get in with a simple majority of signing of authorization cards. The concern that both the DOL and the employers have had about that process is that it leaves employees open to subtle and even open coercion by their coworkers rather than having the privacy of a private vote in a booth and no one knows how you voted, either for or against the union. Perhaps even more troubling, is the fact that with a simple majority of signed cards and that the union is the collective bargaining agreement, is exactly how that CBA comes to be.
In the past, there’s been bargaining and oftentimes both sides could bargain for quite a long time before they came to terms. Free Choice Act says that if there is no collective bargaining agreement in place within the first 90 days, they will go to mediation and an arbitration panel and if another 30 days can’t result in a deal, then a collective bargaining agreement will actually be imposed on the employer and it will be two years in length or until the parties can agree on a second collective bargaining agreement. So, businesses are necessarily very concerned about that and President-elect Obama is on the record of saying he’s very much in favor of it.
Mike Coffey: Okay, so assuming that the Employee Free Choice Act or something like it gets passed in the next Congress, what can employers do now to prepare for this reinvigorated union movement?
Audrey Mross: Well even before this bill was on the horizon, what employers ought to be doing to avoid being subject to a collective bargaining agreement is to – and it’s so simple – do right by your employees. The first step is understanding how they perceive how they’re being treated and a good way to do that is normally you would get a third party to come in there and do some sort of either blind or mutual surveying of the employees and take a temperature. Find out how do they feel about their wages, their benefits, their working conditions, even how’s the thermostat set. Are you comfortable with that temperature?
I mean no detail is too small to ask and find out and just confirm that folks are happy with their lot, because generally folks that feel like they’re getting a fair shake are not inclined to go with the unknown, which would be this outside union coming in and saying “Well, we can do better” and they don’t get much traction where there’s a workplace full of happy campers. Where they do get traction is where people are unhappy with their lot. The number one thing that seems to just affect employees and make them listen to the union message is supervisors that are a little rough on their employees or perceived as being unfair and playing favorites with some employees.
So, it’s a real good idea to take a temperature of your folks. Determine how they feel about their working conditions, and also spend some time with your supervisors and train them adequately not only to recognize the signs of union organizing, so that you can make a proper response, but just to avoid it in the first place, by helping them to understand the key roles that they play in ensuring that people, in fact, are happy with where they work.
Mike Coffey: Well that makes sense, treat your employees with respect, keep them engaged, make them feel valuable. So when we think about unions we think about manufacturing, auto plant workers, that kind of thing. Are there any limits on what kind of employees can organize a union or on the size of the employer that can be organized?
Audrey Mross: No, there are no size limits. And the interesting trend is that over the years, except in the public sector, the percentage of work forces that are union have been trending down and that may be in direct correlation to the fact that the historic industries that they focused on, like manufacturing and heavy industrial, are also trending down just in your sheer numbers. And so just purely as a necessity, to remain alive and viable and funded, the unions have definitely moved their sights over to other industries and professions that people don’t often associate in their minds with union activity; a chief one being the healthcare profession and even attempting to organize groups of doctors.
You don’t normally think of unions coming after professional individuals, but they certainly are because that’s where some of the job growth has been and will be going to the future. For all of aging baby boomers, we’re gonna need lots of healthcare, but also because of they have heavy pockets, they can afford the dues.
Mike Coffey: Wow. I’m sure a lot of employers haven’t even considered that their highly educated professional staff might be enticed to start a union. Are lower paid staff as equally as appealing now to the union organizers?
Audrey Mross: Absolutely. And again, it goes back to who are the population that may be a little disaffected and not happy with their employer, but moving back to the healthcare example, another prime subset within that group are nurses. What the union is seizing upon in order to gain their favor is sometimes nothing more than the tension between the nurses and the doctors or the nurses and the administration. And where the key issues has been, to me is a little thin, at many hospitals and clinics they’re desperately looking for additional nurses to staff up, but what that means is the ones that are in place right now tend to work very long hours.
And you know, when you’re working long hours and if you feel like you’re not getting respect from the doctor who you’re supporting, those are the ingredients that are necessary to bring a union in.
Mike Coffey: Yikes. I guess I’m gonna go buy my employees lunch today.
Audrey Mross: And be nice to your nurse. (Laughs)
Mike Coffey: Okay, earlier you mentioned the changes to the Americans with Disabilities Act? What do employers need to be aware of there?
Audrey Mross: A couple of things. In the original Americans with Disabilities Act, the definition of who has the protection of the law was a little bit long winded but essentially, it was somebody who had an impairment and who was substantially limited in major life activity and can perform the essential functions of the job with or without a reasonable accommodation unless they either posed a direct threat or there was an undue hardship. And as you can imagine, each of those little words and phrases had to be fleshed out mostly through litigation because you can’t draft a statute or a regulation that deals with every possible situation that might apply.
In the original ADA there actually was no definition of a major life activity. You had to look into the regulations and you also had to look into the additional guidance, such as opinion letters put out by the EEMC, and you also had to look at court decisions to get your mind around “Well, what exactly is one of these major life activities?” and then, you have to go into and “What do you mean by substantially limiting?”
Under the new ADA, the definition of major life activity has actually been put into the statute and they added some major life activities that weren’t in there before, but maybe had cropped up as a matter of either rule making or court decisions. Probably one of the big things that people are looking at is the ADA was intended to negate the effect of several Supreme Court decisions. One of the big ones posed the question “Well, if I’m trying to figure out if my employee has the protection of this law, and I’m trying to figure out whether or not they are in fact one of these qualified individuals with a disability, and if they granted have some impairment, but the affect of that impairment has been mitigated either by them taking a prescription or because they have some sort of adaptive device like a prosthesis, or even sometimes the body, itself, adapts to certain impairments, monovision being one of them, so we’re not trying to make this decision is this person disabled or not? Do I consider them in their mitigated state or their unmitigated state?”
Well the Supreme Court some years ago said “No, you look at them in the mitigated state and if the prescription or the device or the body itself has adapted in such a way that they’re not longer disabled, they don’t have the protection of the law.” The new ADA turns that on its head and says “No. You examine the condition in it’s unmitigated state to determine whether or not they have the protection of the law.”
Mike Coffey: So what are the practical issues that an employer’s gonna be dealing with on a daily basis because of these changes?
Audrey Mross: Well I think you can go back to the legislative record on the change in this and all the people that came up and spoke and it kinda helps you understand what it is they’re trying to accomplish through these changes. Because person after person after person came up there and spoke and said this law is not having the desired affect. It has so many catches and gotchas in it, that the people who in fact have disabilities and could use some help never make it past that first hurdle of being declared “Yes, you are an individual with a disability.” So maybe the best way to look at this is that they’ve taken the definition or the elements of what it takes to be deemed disabled and therefore entitled to the protection of the law and brought that threshold way down in a number of ways.
Mike Coffey: I don’t wanna steal the thunder from your North Texas SHRN presentation, but what other legal issues might be on the horizon for HR in 2009?
Audrey Mross: Well we are watching out for the recent amendments to the Family Medical Leave Act, that was amended with the National Defense Authorization Act and it added two new forms of leave. One of those, something called ‘caregiver leave’ actually took affect back in January. That’s the one where if an employee has a family member who was injured by being on active duty in the US military, and now they’ve come back stateside and they’re either hospitalized or perhaps they’re at home, but they’re recuperating. That employee who’s related to that person can take up to 26 weeks off, job protected leave under FMLA, to care for that family member. The other one is the ‘active duty leave’ and that’s simply to take time off for that family member who’s been called up, to see them off, to help them get their arrangements in place. Perhaps they’re making arrangements for their kids, their finances, their legal situation, and its set to help them out with that.
On that one, until they figure out what the definition of an existing ‘extenuating circumstances’ and put that out in a published regulation, employers are not yet required to grant active duty leave. They are being encouraged to do so and in fact, in some states you’ll find that there’s state law that grants job protection leave to those family members to help their active duty military person, but the FMLA version will not take affect until those regulations are published. And so we’re just waiting on them. The last I heard they had gone to OMB in the middle of October and that normally means you’re gonna get a published reg out within the next month or so, so I’m thinking that we’ll have regs before we have turkey on our table.
Mike Coffey: Wow. That quick, huh? Well what about immigration? I know that e-Verify, the federal government’s online system to verify eligibility to work for new hires, dodged a bullet this fall and received funding to next spring. What do you think E-Verify’s prospects are under the new administration and the new Congress?
Audrey Mross: Oh, I think there’s a pretty good head of steam to go ahead and continue to fund that into the future. And in fact, the amount of funding that was granted was well in excess of what it takes to keep it running. They added an additional amount to in fact, improve upon it. So my thinking is “You don’t spend money to improve something just to turn around and junk it.” There is a faction of employers who are pressing to move away from E-Verify and instead, rely upon the database that’s currently being used as part of the new hire reporting system, because the feeling is it’s a little more comprehensive, a little more accurate, a little more complete, but it seems like right now the emphasis and the money and the focus is being put on E-Verify to update it and make it better.
You know, it’s a joint database between USCIS and the Social Security Administration. So, personally, I think that you’ll see a move to improve it and at some point mandate its use for all employers. There was an executive order put out mandating its use for federal contractors, but that still has not been finalized and there have been a number of pushes to go ahead and make it mandatory for all employers. So, that’s a good one for us to keep our eyes on in the months to come.
Mike Coffey: Arizona and some other states are requiring that employers use E-Verify on all new hires. At this point in Texas, I know there’s no law requiring that employers use E-Verify. What kind of discussions are you having with your clients about their use of E-Verify?
Audrey Mross: At this point, what we’re talking to our clients about, first thing is to check what states they have employees in because there are a handful of states that have mandated use of E-Verify; some of them allow alternate systems to be used. It’s actually been an interesting thing to follow because E-Verify basically deals with an immigration issue. States that have tended to pass these laws that touch upon an immigration issue, to a great extent, have found those laws have been held unconstitutional because normally, immigration is handled by the federal government through the Commerce Claus.
But, Arizona being one example, some states have found that their immigration oriented laws have withstood the challenge in the court. The Arizona one is particularly interesting because the consequences of not following it are so dire on the second finding that an employer is knowingly employing illegal aliens, they can have their license pulled to do business in that state. So the first thing I advise my folks to is look at where your employees are located. Look at what state law’s in place and see what, if anything, you’re required to do at that level. If you’re not required to do anything, at least for now, I would hold off on using E-Verify and allow this added funding and effort to improve upon the scope and accuracy of the database to move forward a little bit further.
Mike Coffey: Great. Thanks for joining us today, Audrey.
Audrey Mross: Thank you Michael. I have enjoyed it very much.
Mike Coffey: Audrey Mross leads the labor and employment law section at Munck Carter. You can reach her by visiting their website at monkcarter.com. That’s M-U-N-C-K-C-A-R-T-E-R dot com. She’ll also be the speaker at the monthly luncheon of the North Texas SHRN Chapter on November 18th. You can register for that event at NorthTexasSHRN.org. Thanks for listening to The Imperative Podcast. For more interviews with HR thought leaders and other information relevant to HR professionals in North Texas and across the country, visit our blog at ImperativeInfo.com. Thanks for joining us and have a great week.
A recent article on WorkforceManagement.com discusses how in previous years employers would risk bending immigration compliance in favor of avoiding any discriminatory practices. Now, in light of increased enforcement of immigration laws, a difficult balance must be reached between both issues.
The Department of Homeland Security’s Immigration and Customs Enforcement (ICE) has begun to receive tips from employees questioning whether their fellow employees are in the country legally. Companies are pushing competitors “under the bus” and contacting ICE to bring to its attention any sign of unauthorized workers.
It is now a standard ICE practice to arrest lower-level employees and flip them to produce evidence against recruiters, managers, and executives. “From October 2007 to July 2008, ICE made 937 criminal arrests in workplace investigations, including 99 arrests of owners, hiring managers, supervisors and human resources employees who now face charges ranging from harboring to knowingly hiring undocumented workers.”
One of the biggest concerns is that employers have been forced to become so compliance-oriented with respect to immigration law that they risk discriminatory practices. “To prevent this, HR executives must ensure that they are not being overly aggressive in their immigration compliance activities.”
We can add Mississippi to the list of states that now requires employers to use E-Verify, the federal government’s online system for checking the information provided on the Form I-9 to verify the employment eligibility of all newly hired employees.
Arizona began requiring all employers to use E-Verify effective January 1, 2008.
Adoption of this free web-based system has met with employer resistance because of its mandatory online tutorial, which can take up to an hour to complete, and the confusing process required when a new hire’s SSN and name does not match.
To assist employers in using the E-Verify system, Imperative Information Group has introduced i9 Advantage. This enhanced interface to the E-Verify system allows employers and new hires to securely complete the Form I-9 online, streamlining the paper process and eliminating the need for Form I-9 filing systems employed by many companies. It also improves the usability of the E-Verify system and offers other key advantages over both the paper-based completion of the Form I-9 as well as E-Verify.
The Department of Homeland Security’s Immigration Control and Enforcement (ICE) division has begun increased monitoring and enforcement of employer compliance with immigrant work eligibility rules. Employers face harsher civil and criminal penalties for hiring undocumented workers.
Forms I-9 for all current employees and for all employees terminated over the past year.
All U.S. Social Security Administration (SSA) “Employer Correct Requests” and “Requests for Employee Information” letters (also known as “no-match” letters) received in the prior three calendar years.
Other payroll and business income information.
Experts say that receiving a “no-match” letter may be the first sign that an employer is under scrutiny.
Additionally, Cynthia Lange, a partner with Fragomen, Del Rey, Bernsen & Loewy LLP, recently told SHRM members at a Washington DC conference that ICE and the Department of Justice have begun criminally prosecuted hiring managers and HR professionals who hire undocumented workers. The agencies have used informants, often other employees, in collecting evidence for their prosecutions, she said.
Lange said the prosecutions have often involved federal conspiracy charges where two or more people are aware of a violation of the law. In other cases, she said, company executives have been charged with “harboring” illegal aliens, a charge previously used to prosecute smugglers who transport illegal aliens.
In an even scarier instance, Houston attorney Joseph Gagnon recently summarized the criminal case brought against a Houston employer who allegedly rehired an undocumented alien after he was deported. The employee has been charged with the murder of a Houston police officer and in an unexpected twist, federal criminal charges have been filed against the employer for his alleged role in helping the alien return to the US illegally and harboring him once he arrived in Houston. The employer faces up to 10 years in prison and a $500,000 fine if convicted.
To protect themselves, employers should review their processes for completing and retaining Forms I-9 from new hires. While employers are not required to maintain copies of the documents provided by new hires during completion of the Form I-9, many employment law attorneys are encouraging employers to do so as documentation of their good-faith effort to comply with the law.
DHS and the Social Security Administration are encouraging employers to use the E-Verify system (previously called the Basic Pilot Program or the SAVE Program) to electronically verify the identity information provided on the Form I-9 and the new hire’s eligibility to work in the US.
Adoption of this free web-based system has met with employer resistance because of its mandatory online tutorial, which can take up to an hour to complete, and the confusing process required when a new hire’s SSN and name does not match.
To assist employers in using the E-Verify system, Imperative Information Group has introduced i9 Advantage. This enhanced interface to the E-Verify system improves the usability of the system and offers other key advantages, including:
Form I-9 Entry Validation – Real time validation of data entered into fields on the Form I-9.
Duplication Alert – User is advised when entering a form for an employee who already has a form on file.
Preventing employees from using the same SSN.
Audit Log – All actions (creation, view and print) relating to a form are tracked and searchable.
Up to Date Resources – FAQ’s, articles and press releases are researched and provided on Form I-9 and immigration topics of interest
Tentative non-confirmation – We walk you through a step-by-step resolution process
Digital Form I-9 Storage – Searchable for review, audits and re-verification.
Expiration Notices – Email notification of an employee’s expiring work authorization.
Printable PDF’s – Search for stored forms and print in PDF format.
On-Line E-signatures – No need to keep separate signatures files or forms.
Permissions – Three permission levels allowing optimal security throughout the company.
When the headquarters of Delta Delta Delta Fraternity (Tri Delta), the nonprofit sorority with chapters on 138 college campuses, found almost $400,000 in bejeweled gold membership pins missing and a sorority employee was arrested for the theft, weaknesses in the sorority’s hiring process and internal controls became apparent. According to court documents, Tri Delta employee Carla Rae Seals […]
When 88-year-old Sammie Berry’s family moved the wheelchair-bound Alzheimer’s patient to the Kaufman Healthcare Center in Kaufman, Texas, they expected that she would be in a safe environment, attended by a caring staff. What she received, according to news reports, was physical abuse at the hands of a certified nurse aid, James Seaton. Mr. Seaton told a […]
Two different hotels in Mesa, Arizona are being sued by guests who say they were raped by Jason Brown, who worked at each of the hotels as an overnight clerk. As it turns out, Jason Brown is registered as a level-3 sex offender (those most likely to reoffend) whose criminal history includes felony convictions for: He also […]
Antoine Flowers was hired by the City of Dallas as an IT manager. His resume was certainly impressive for any IT professional, much less a 26 year old. According to the Dallas Morning News, Flowers’ resume included claims that he had:Promising candidate… if any of it were true. Apparently, the City of Dallas is very […]