E-Verify or E-Terrify?

Worker Verification System has Business Groups Stewing

By David Silva

Already in effect in Arizona, will Washington enact E-verify federally, and what will it mean for your firm?

As with so many issues associated with the immigration debate, a controversial federal system for electronically verifying the residency status of workers has led to a collision between powerful interests convinced that their side is right and the other is plain wrong.

At issue is E-Verify, an online system through which employers can check the status of new hires against Social Security Administration and Department of Homeland Security databases. While participation in the E-Verify program is largely voluntary on the national level, Arizona and Mississippi have passed laws requiring private employers to verify residence status using the system. Several other states -- including Georgia, Mississippi, Rhode Island and South Carolina - have adopted or are considering adopting laws requiring public employers and contractors holding public contractors to use E-Verify.

Widespread opposition to the E-Verify system coalesced in June 2008, when President Bush signed an executive order requiring all federal contractors and subcontractors to screen their hires through the system beginning Jan. 15 of this year. The order was immediately attacked by groups as disparate as labor unions, the U.S. Chamber of Commerce, and the Associated General Contractors of America.

Robert Hirsch, director of legal and regulatory affairs for Associated Builders and Contractors, says in a written statement that the organization “does not oppose the voluntary use of E-Verify by employers who believe that their use of the system would be of benefit to them.

“However, there are a number of problems with the system’s functionality and accuracy which we believe could unnecessarily expose employers acting in good faith to legal liability,” continues Hirsh, whose Arlington, Va.-based group represents 25,000 construction and construction-related firms in the U.S.

Larry Trejo

Larry Trejo, executive director of Associated General Contractors’ El Paso chapter, was more blunt.

“I’m sure if this becomes a mandate we’ll comply, but we are not law enforcement,” he says. “We’re not immigration or judicial enforcement - we’re not in a position to enforce immigration law. We have enough things to do, and certainly hope the federal government will find a way to achieve their aims without saddling local contractors.”

Trejo and others cite a host of reasons for opposing the federal contractor requirement, with the biggest concern being that E-Verify isn’t 100% accurate. Should an employee’s name come up as ineligible to work, they ask, would the employer be subject to a wrongful-termination lawsuit if it turned out the employee was in fact a legal resident? Further, since the federal rule applies to contractors and subcontractors, would a general contractor be held criminally liable if a subcontractor fails to screen all its workers?

Angelo Amador

“Every employer should be responsible for those they hire, not everybody else’s,” says Angelo Amador, director of immigration policy for the U.S. Chamber of Commerce in Washington, D.C. “Also, the federal rule has a re-verification requirement, which would require large companies like Boeing to re-verify hundreds of employees at once. We think [the federal government] tried to push the envelope a little bit too far.”

In April, responding to a class-action lawsuit spearheaded by the U.S. Chamber of Commerce and a request by Rahm Emanuel, chief of staff for  President Obama, the Federal Acquisition Regulation Council agreed to delay implementation of the mandate until at least May 21. Emanuel’s intervention has raised hopes among E-Verify’s opponents that the new administration is on their side.

But Rebecca Rudman, press secretary to Rep. Ken Calvert of California’s 44th Congressional District, says the construction industry’s concerns about E-Verify are unfounded. Calvert, a Republican whose district includes parts of Southern California’s Inland Empire and Orange County, wrote the bill that launched E-Verify 12 years ago as a federal pilot program.

“The program is 99.6% accurate,” Rudman says. “When the employer is going through the process, 99.6% of the time they get an accurate response.”

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Asked about claims by E-Verify opponents that the system has a 10% error rate, Rudman says the accuracy of the system has been greatly improved.

“The 10% error rate has decreased - the problem was an error in the Social Security database,” she says. “A lot of those errors involved people who had gotten married and had their names changed, but never reported it to the Social Security Administration. E-Verify simply brings this forward. When someone gets a tentative non-confirmation [of legal residency], they get an opportunity to contest that by going to their local Social Security office or calling an 800 number for E-Verify. “

Rudman says opponents’ concerns about civil and criminal liability were legal issues that needed to be addressed by the Department of Homeland Security. But she says all employers “should be hiring legal workers.”

“Without E-Verify, there’s really no way for employers to do that,” she says. “They want to do the right thing, and this gives them the tool they need for that.”

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