Pennsylvania Labor and Employment Blog : Pennsylvania Labor and Employment Lawyer & Attorney : McNees Wallace & Nurick Law Firm : Human Resources, Workplace and Business Law : Harrisburg, Lancaster, Allentown, Lehigh

The President and Vice President met with a bipartisan group of Congressional leaders in late June to discuss one of today's most contentious issues – immigration – and how to go about reforming the broken immigration system. One of the White House's focal points for immigration reform is enhanced enforcement efforts. The President noted that the Department of Homeland Security and the Department of Labor are working to crack down on employers who are exploiting illegal workers.

U.S. Immigration and Customs Enforcement (ICE) is launching a new audit initiative by issuing Notices of Inspection (NOIs) to 652 businesses nationwide - which is more than ICE issued throughout all of last fiscal year. The notices alert business owners that ICE will be inspecting their hiring records to determine whether or not they are complying with employment eligibility verification laws and regulations. Inspections are one of the most powerful tools the federal government has to enforce employment and immigration laws. This new initiative illustrates ICE's increased focus on holding employers accountable for their hiring practices and efforts to ensure a legal workforce.

The Department of Homeland Security announced that the Administration will push ahead with full implementation of the rule requiring use of E-Verify by government contractors, which will apply to federal solicitations and contract awards Government-wide starting on September 8, 2009. The federal contractor rule extends use of the E-Verify system to covered federal contractors and subcontractors, including those who receive American Recovery and Reinvestment Act funds. DHS also announced it will scrap the Social Security No-Match Rule, which has never been implemented and has been blocked by court order, in favor of the more modern and effective E-Verify system. On July 8, the U.S. Senate adopted an amendment to the Fiscal Year 2010 Department of Homeland Security appropriations bill that will require federal contractors to use the government’s voluntary electronic employee verification system known as E-Verify. The spending bill also extends E-Verify for three more years.

U.S. Citizenship and Immigration Services (USCIS) also recently announced that the Employment Eligibility Verification form I-9 (Rev. 02/02/09) currently on the USCIS Web site will continue to be valid for use beyond June 30, 2009. USCIS has requested that the Office of Management and Budget (OMB) approve the continued use of the current version of Form I-9. While this request is pending, the Form I-9 (Rev. 02/02/09) will not expire. USCIS will update Form I-9 when the extension is approved.   Employers will be able to use either the Form I-9 with the new revision date or the Form I-9 with the 02/02/09 revision date at the bottom of the form.

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U.S. Citizenship and Immigration Services’ (USCIS) announced the third postponement of the implementation of the final rule requiring federal contractors and subcontractors to begin using E-Verify system which is now delayed until Sept. 8, 2009.

The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (collectively known as the Federal Acquisitions Regulatory Councils) will published an amendment in the Federal Register on June 5, 2009, postponing the applicability of the final rule until Sept. 8, 2009. The rule was first published on Nov. 14, 2008 requiring federal contractors and subcontractors to agree to electronically verify the employment eligibility of their employees. I previously summarized the rule in "E-Verify Final Regulations Issued Requiring Government Contractors and Subcontractors to Verify Employment for New and Existing Employees who Perform Contract Work."

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The applicability date of the final rule requiring federal contractors and subcontractors to begin using U.S. Citizenship and Immigration Services’ (USCIS) E-Verify system has been pushed back by six weeks to June 30, 2009, with hint that it may be abandoned or revised. The USCIS website contains the following notice:

The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (collectively known as the Federal Acquisitions Regulatory Councils) will publish an amendment in the Federal Register tomorrow postponing the applicability of the final rule until June 30, 2009. The rule requiring federal contractors and subcontractors to agree to electronically verify the employment eligibility of their employees was first published on Nov. 14, 2008, and went into effect on Jan 19, 2009.

The extension provides the Administration an adequate opportunity to review the entire rule prior to its applicability to federal contractors and subcontractors.

My previous posts on the E-Verify rule are here:

E-Verify Final Regulations Issued Requiring Government Contractors and Subcontractors to Verify Employment for New and Existing Employees who Perform Contract Work

Mandatory use of E-Verify for Government Contractors delayed again to May 21, 2009

Good News: SHRM reports delay in E-Verify Regulations' Effective Date until February 20, 2009

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The Chamber of Commerce reports another delay in the implementation of Federal Acquisition Regulations that require mandatory use of the E-verify system by government contractors. An agreement was reached in the pending litigation for the purpose of allowing the Obama Administration an opportunity to review pending regulatory actions left over from the Bush Administration.  The new effective date is May 21, 2009.  Our prior post outlines the requirements:  E-Verify Final Regulations Issued Requiring Government Contractors and Subcontractors to Verify Employment for New and Existing Employees who Perform Contract Work

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SHRM is reporting the delay of E-verify regulations until February 20, 2009. There is no such report on the Homeland Security or Dept of Justice websites. Stay tuned.  A previous post discusses the regulations: E-Verify Final Regulations Issued Requiring Government Contractors and Subcontractors to Verify Employment for New and Existing Employees who Perform Contract Work

UPDATE: Mandatory use of E-Verify for Government Contractors delayed again to May 21, 2009

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Human Resource Professionals face a demanding legal compliance year in 2009. The following five items should be added to your "To Do" list for the first quarter of '09:

ADA Amendments Act Compliance (effective 1/1/2009):  The amendments greatly expand the definition of disability refocusing compliance on determining whether the employee is "qualified" and evaluating reasonable accommodations. Employers should consider the following:

• Revising job descriptions to define essential job functions and minimum qualifications.
• Formalizing the interactive process for assessing disability issues.
• Educating supervisors on the expanded ADA coverage.

E-Verify Registration and Immigration Compliance (effective 1/15/2009):  Government contractors and subcontracts may need to register for and use the E-Verify System for new and existing government contracts. Employers who may be covered should inventory their existing contracts and review prospective contracts and subcontracts to determine whether they are covered by the regulations.

U.S. Citizenship and Immigration Services (USCIS) has amended regulations governing the types of acceptable identity and employment authorization documents that employees may present to their employers for completion of the Form I-9, Employment Eligibility Verification. Under the interim rule, employers will no longer be able to accept expired documents to verify employment authorization on the Form I-9. There are other changes to the types of acceptable documents. Employers must use the revised Form I-9 (not yet issued) for all new hires and to re-verify any employee with expiring employment authorization beginning January 31, 2009. The current version of the Form I-9 will no longer be valid as of February 2, 2009.

FMLA Regulations Implementation (effective 1/16/2009):  Amendments to the FMLA's regulations require action by employers in the following areas:

• Reviewing the regulatory changes and integrate them into your compliance program.
• Using the new forms and poster.
• Revising Employee Handbook provisions.

EFCA and RESPECT Act Planning:  This pending legislation has enormous potential consequences for employers. Developing an action plan should include the following items:

• Assessing union eligibility of working supervisors under RESPECT Act.
• Educating supervisors on authorization cards and the Nuts and Bolts of EFCA.
• Adopting union-free policies on solicitation, bulletin boards, and use of e-mail.
• Initiating engagement surveys.

Wage & Hour Self-Audit:  As evidenced by Wal-Marts recent record settlement, wage and hour lawsuits will play prominently in 2009. A self-audit of compliance practices can mitigate these claims particularly in the following areas;

• Employee classification (exempt vs. non-exempt)
• Off the clock work (starting times, breaks and meal periods)
• Donning and Doffing
• Child labor

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Federal government contractors and subcontractors will be required to begin using the U.S. Citizenship and Immigration Services’ E-Verify system starting Jan. 15, 2009 (now 5/21/09), to verify their employees’ eligibility to legally work in the United States.  The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council amended the Federal Acquisition Regulation (FAR) to reflect this change.  E-Verify must be used to verify all new employees and all employees who work on the covered government contract unless the employees were previously verified or commenced work for the employer before the June 6, 1986 the effective date of the Immigration Reform and Control Act.  Contract Officers will insert clauses in new contracts and solicitations.  In addition, certain existing government contracts may be amended to include the requirements.

E-verify provisions on covered contracts apply to all government contractors and subcontractors with limited exceptions detailed in the final regulations. Each covered contractor and subcontractor must: 

• Enroll in the E-Verify Program within 30 days of the award of a contract, if not already enrolled.
• Those employers already enrolled in E-Verify for 90 days as of the effective date of the new regulations must verify all new employees with 3 days of hire.
• Those employers not enrolled in E-Verify must begin to verify all new employees within 90 calendar days of E-Verify enrollment whether or not such employee performs work on the government contract or subcontract within 3 days of the date of hire.
• Verify each existing employee assigned to the contract within the later of 90 calendar days of E-Verify enrollment or 30 calendar days after the employee's assignment to the contract
• Employees previously verified through E-Verify are exempt.
• Elect to verify all employees hired after June 6, 1986 whether or not assigned to the contract.
• The phrase “employee assigned to the contract” refers to individuals who were hired after June 6, 1986 who are “directly performing work under the contract,” and to exclude employees who normally perform support work, or who do not perform any substantial duties applicable to an individual contract.
• Subcontracts must include a clause requiring compliance by the subcontractor.
• A new Memorandum of Understanding (MOU) will be published shortly.

The Final Regulations are summarized by the Office of Acquisition Policy and appear on the DHS website with a Small Entity Compliance Guide.

Final Regulations in .pdf: FAR Employment Eligibility Verification

DHS Website: Frequently Asked Questions: Federal Contractors and E-Verify

UPDATE:  Mandatory use of E-Verify for Government Contractors delayed again to May 21, 2009

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On October 23, 2008, the Department of Homeland Security (DHS) released an advance copy of its supplemental final no-match safe harbor regulation initially issued in August 2007. The original regulation was set to take effect in September 2007 but was enjoined by the U.S. District Court for the Northern District of California. The revised regulation is expected to be published in the Federal Register any day, and will take effect immediately. Of course, it is possible (even likely) that another lawsuit may be filed seeking to block this final regulation.

While the substance of the regulation has not changed, DHS did address the two main concerns that lead the court to enjoin the original regulation. First, the preamble of the new regulation clarifies that employers will be considered to have constructive knowledge only if they receive a no-match letter from the Social Security Administration (SSA). That is, DHS will not impute constructive knowledge based on any other communication from the SSA. Second, DHS explained that it would not take action based on no-match letters involving employees hired before November 6, 1986 (the date the Immigration Reform and Control Act was enacted).

The revised regulation outlines the steps an employer must take in order to benefit from a “safe harbor” if the employee named in a no-match letter turns out to be an unauthorized worker. Upon receipt of a no-match letter, the employer should check internal records and either make appropriate corrections or ask the employee to correct the discrepancy within 90 days. Once the discrepancy is resolved, the employer should update the relevant I-9 paperwork and notify agencies of the correction. If the discrepancy cannot be resolved within 90 days, the employer must complete a new I-9 form for the employee by the 93rd day. In completing this new I-9, the employer may not accept any document with the social security number contained in the no-match letter. In addition, the new verification document must include a photo. If the employer is still unable to verify the identity and employment authorization of the employee, the safest course of action is to terminate the employee, or risk facing charges.

Employers should develop and implement a policy to ensure compliance with the process described in our August 2007 Employer Alert. Employers should note, however, that no-match letters were not issued in 2007 and will most likely not be issued in 2008.

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