by Roy Maurer, SHRM
Legislation requiring employers to use the government’s electronic employment eligibility verification program to ensure that their employees are authorized to work in the U.S. will soon be reintroduced, lawmakers said.
Rep. Lamar Smith, R-Texas, announced his intention to reintroduce the Legal Workforce Act at a Feb. 4, 2015, House Judiciary Immigration and Border Security Subcommittee hearing, calling it a “common sense approach that will reduce illegal immigration and save jobs for American workers and legal workers.”
The previous version of the bill was reported out of the House Judiciary Committee in December 2014 but was never called for a vote in front of the full House of Representatives. The proposal would have required employers to attest that their workers are authorized to work in the country via the E-Verify system.
The E-Verify program is an Internet-based system that allows employers to electronically check an employee’s I-9 form against government records to confirm that the person is eligible to work in the U.S. The program is voluntary at the federal level, though some states require certain employers to use it. Nearly 575,000 employers are currently signed up to use E-Verify and the agency that administers it has testified that the program confirms applicants’ work eligibility 99.7 percent of the time.
“One way to make sure we discourage illegal immigration in the future is to prevent unlawful immigrants from getting jobs in the U.S. Requiring the use of E-Verify by all employers across the country will help do just that,” said Judiciary Committee Chairman Bob Goodlatte, R-Va., who co-sponsored the previous legislation.
The bill would phase-in E-Verify use in six-month increments beginning with the largest U.S. businesses and mandate that all employers use the system within two years of enactment.
The legislation raises penalties for employers who don’t comply with E-Verify requirements, allows employers to use E-Verify prior to hiring an applicant, provides a safe harbor for employers who use the system in good faith, and seeks to combat identity theft by requiring agencies to “lock” Social Security numbers suspected of being compromised and notify applicants of any “unusual multiple use.”
Business Community Support
Randy Johnson, U.S. Chamber of Commerce senior vice president of labor, immigration and employee benefits, told the subcommittee that “in light of improvements in E-Verify, its use by federal contractors, and the focus on a more reliable employment verification system as a necessity, as well as a logical prerequisite to further immigration reform … we have concluded that the time has come to establish a uniform policy regarding employment verification and the use of E-Verify.”
Johnson conditioned his support for the bill on its “realistic workability” for employers. He listed several operational issues that must be tackled including:
- Identity verification and authentication safeguards.
- A single national policy and uniform enforcement standards.
- Strong safe harbors for compliant employers.
- Not mandating reverification requirements for current staff.
- Allowing exemptions for hires in remote locations which could be challenging for E-Verify verification.
“What we learned from our members was that the E-Verify system is greatly improved and, while not perfect, could be workable with continued technical improvements accompanied by specific, important legislative changes,” Johnson said. He added that the current “patchwork of state laws” and employment verification policies have created uncertainty in the business community.
Angelo Amador, senior vice president and regulatory counsel for the National Restaurant Association (NRA) told the panel that there is broad support for E-Verify among the NRA membership and that the Legal Workforce Act is a “thoughtful, balanced approach” to implementing a major change in workplace hiring. “It is imperative that any mandated E-Verify program be fair, efficient, workable and cost-effective,” he said. Amador agreed that employment verification laws passed by different states and local governments “create an untenable system for employers and their prospective employees.”
Jill Blitstein, the international employment manager at North Carolina State University and representing the College and University Professional Association for Human Resources (CUPA-HR) voiced the organization’s support for the majority of provisions within the bill, but expressed concerns about the phase-in dates for compliance, and the length of the employment verification period.
The proposal would require that all public employers verify the employment eligibility of any employees that had not previously been run through the system within six months after enactment. “Having verified the entire workforce at [North Carolina State] under the current E-Verify system, I can tell you with confidence that this is an unrealistic time frame to achieve full compliance for large employers,” she said.
Additionally, CUPA-HR suggested extending the verification and reverification periods, from the current three days to five days. “The biggest obstacle to full compliance with the employment eligibility verification process is the very short time frame in which it must be accomplished,” Blitstein said. “Any large employer, whether public or private, can tell you that performing the required identity and employment authorization verification check within the three days after the hire date is incredibly labor-intensive and difficult to do in the real world, especially if employees are located in dozens of states.”
‘Cart Before the Horse’
Democrats on the committee argued that the legislation needs to be part of a comprehensive immigration package. Calling it the “cart before the horse,” Rep. John Conyers, D-Mich., said that “E-Verify cannot be made mandatory to all employers without comprehensive reforms to our nation’s broken immigration system.”
Democrats and Chuck Conner, president of the National Council of Farmer Cooperatives, explicitly stated that a mandatory E-Verify program would have a “devastating impact” on the agriculture industry, where it’s estimated that about 70 percent of the nation’s roughly 1.4 million farm workers are believed to be undocumented.
Conner said the ideal approach to resolving the labor issue in agriculture would be to pair enforcement with an adjustment of status for the current unauthorized workforce and a redesigned market-based guest worker program.
Republican lawmakers promised that the agricultural component to immigration reform is imminent. “Starting with E-Verify in no way, shape or form means that we are not cognizant of the issues that the agriculture community faces,” said Rep. Trey Gowdy, R-S.C., and chair of the subcommittee.
The Agricultural Guestworker Act, introduced by Rep. Goodlatte in 2013, would have created a new temporary visa program, open to both foreign nationals and undocumented farm workers currently living in the U.S. It suffered a similar fate as the previously introduced Legal Workforce Act—passed by the Judiciary Committee, but neglected on the House floor.