The Benefits and Drawbacks of Employers’ Use of “E-Verify” for New Hires
September 03, 2008
by Bruce J. Douglas and Britta L. Orr*
E-Verify is a free, U.S. government online system where employers can determine the eligibility of new hires. E-Verify has the potential to reduce unauthorized employment and minimize discrimination based on verification status. It takes only three to five seconds to get a cursory result. The employee’s I-9 information is cross-referenced with over 444 million records in the Social Security Administration (SSA) database and more than 60 million records in the Department of Homeland Security immigration database. Out of seven million employers in the United States, around 70,000 are currently enrolled in the program, and approximately 1,000 additional employers enroll in the program each week.
E-Verify may eliminate Social Security mismatch letters, improve the accuracy of wage and tax reporting, and protect jobs for authorized U.S. workers. E-Verify may ensure the “stability and dependability” of certain federal government activities by improving the reliability of contractors. Finally, an employer who verifies work authorization under E-Verify has established a rebuttable presumption that it has not knowingly hired an unauthorized worker. Participation in the program does not provide a safe harbor from worksite enforcement, however.
E-Verify does have some drawbacks. A big drawback to E-Verify may be its negative impact on multi-state employers due to the patchwork of state laws. Another concern has been the prevalence of identity theft, which may neutralize E-Verify as an effective tool. Finally, from October 2006 through March 2007, 0.5% of initial mismatches were later confirmed as authorized to work.
E-Verify has certain important parameters of use. First, all employers are prohibited from running existing employee verifications. Second, it cannot be used prior to hiring a job applicant. The earliest the employer may initiate a query is after an individual accepts an offer of employment and after the employee and employer complete the Form I-9. The employer must initiate the query no later than the end of three business days after the new hire’s actual start date. An employer may initiate the query before a new hire’s start date; however, it may not pre-screen applicants or delay training based upon a tentative non-confirmation. Third, if an employer chooses to use E-Verify at a particular worksite, it must be used for all new hires at that site. Finally, an employee should not face any adverse employment consequences based upon an employer’s use of E-Verify unless a query results in a final non-confirmation.
Failure to use E-Verify appropriately may lead to employer liability including back wages for employees who have been subject to adverse action and expulsion from the program. All employers using E-Verify must notify potential employees. This includes posting a notice provided by DHS in an area where it can be viewed by applicants and new hires. If an employee is subject to a mismatch, the employer must promptly provide him or her with information about how to challenge it, including a written notice generated by E-Verify.
The use of E-Verify is voluntary in Minnesota except for the executive branch of the state, recipients of state contracts in excess of $50,000, and recipients of business subsidy agreements with the state of Minnesota.
We have extensive experience in the laws and regulations concerning the hiring of new employees. Please contact us if you have questions concerning E-Verify or your Company’s compliance with state and federal laws concerning the hiring process.
*Britta L. Orr is a law clerk at Larkin Hoffman.
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