In a press release on December 3rd, Texas Governor Rick Perry, announced his executive order that Texas state agencies under the direction of his office must now use the Federal Government’s E-Verify program to verify the employment eligibility of all current and prospective agency employees. Executive Order RP 80 was issued effective immediately on December 3, 2014 and supersedes all previous orders inconsistent with the order. The State of Texas agency directory lists 183 state agencies, though only those reporting to the Governor’s office are subject to the mandate.

The mandated use of E-Verify extends to private employers contracting and subcontracting with affected state agencies. The requirement is prospective, applying to future contracts, and should not impact contracts already in place. New contracts with state agencies must contain provisions requiring contractors and subcontractors to use E-Verify for:

  1. All employees of the contractor who work in Texas during the contract term, and
  2. All employees of the contractor (including subcontractors) who will provide services to the affected state agency under the contract, no matter where they are located.

Governor Perry confirmed that 17 state agencies already use E-Verify. It was not immediately clear how many additional state agencies must enroll in the program. Technically, as an executive order, Governor Perry’s order could be subject to potential rescission by Governor-elect Greg Abbott after he takes office; however, given the Governor-elect’s previous statements on this issue, employers should expect this executive order to stand, and perhaps to be expanded under the next administration.

E-Verify participation requires employers to enter into a binding agreement, a Memorandum of Understanding (MOU), with the Federal Government with respect to steps that the employer will take to verify employment eligibility, in addition to the steps already required of the employer in fulfillment of the employer’s Form I-9 Employment Eligibility Verification obligations. The typical MOU requires employers to commit to self-reporting of violations. Employers who believe it may be in their interest to participate in E-Verify as a result of the Governor’s executive order should contact their Foster immigration attorney to discuss the terms and conditions of participation in E-Verify. One proactive measure would be a pre-emptive audit of the employer’s existing workforce and employment eligibility verification policies in order to mitigate potential exposure. Such proactive measures can help employers avoid unexpected labor disruptions resulting from the use of E-Verify while trying to fulfill contractual obligations.