On June 9, 2008, President George W. Bush amended Executive Order 12989 to combat the purported inefficiency inherent in employing illegal workers. The operative thrust of the president’s amendment was to mandate that federal contractors participate in the federal E-Verify program. The E-Verify program, a free online database operated jointly by the Department of Homeland Security (DHS), formerly United States Citizenship and Immigration Service (USCIS) and the Social Security Administration (SSA), allows employers to check the employment eligibility of any worker. Absent a more expansive state law, the E-Verify program is required only for employers performing federal contracts. A number of states, however, have moved to expand the E-Verify program, requiring state contractors to participate in the program as well. Currently, eight states, including Georgia, require state contractors to participate.1
Georgia began to phase in mandatory participation for state contractors in 2007 with the passage of the Georgia Security and Immigration Compliance Act, found at Georgia Code Sections 13-10-90 and 13-10-91. This law requires all state contractors or subcontractors physically performing services for a public employer, defined as “every department, agency, or instrumentality of the state or a political subdivision of the state,”2 to register and participate in E-Verify. Initially, the law applied only to contractors or subcontractors employing 500 or more employees. As of July 1, 2008, the law now applies to all contractors or subcontractors employing 100 or more employees. Also, beginning July 1, 2009, the law will have universal application to all state contractors and subcontractors, regardless of the number of employees.3
Therefore, Georgia public employers and contractors need to consider implementing E-Verify through the language in their contracts and subcontracts. Most public employers and contractors will want to require contractors and subcontractors to register and begin participating in E-Verify before any work commences on the underlying contract. An affidavit from the contractor or subcontractor certifying registration and participation is also recommended.
Attention should be given to contracts currently being entered into which will be in effect for more than one year. While a contractor or subcontractor employing fewer than 100 employees today is not required to participate in E-Verify, beginning July 1, 2009, that contractor or subcontractor will be required to participate. As well, a contractor or subcontractor may hire new employees over the course of contract performance, suddenly forcing the contractor or subcontractor to register and participate. Thus, we recommend drafting language requiring participation in the program before work begins for all contractors and subcontractors with 100 employees or more and also requiring registration and participation within three to five business days of meeting the mandatory threshold of the Georgia Security and Immigration Compliance Act for contractors and subcontractors not currently meeting the threshold. As an alternative, the public employer or contractor may wish to proactively mandate all contractors and subcontractors to begin participating now, in order to avoid compliance gaps in the future.
Once a contractor or subcontractor knows it is required to participate, implementing the E-Verify process is the next concern. To begin participating in E-Verify, a contractor or subcontractor should register at https://www.vis-dhs.com/EmployerRegistration . At the completion of the registration process, the employer, or an authorized representative of the employer, will be required to sign a Memorandum of Understanding (MOU) which sets out the terms and conditions between the employer, SSA and DHS. Public employers and contractors may wish to request a copy of the MOU from contractors and subcontractors in order to verify registration.
Another critical issue, once participation begins, is the sensitive time constraints on the E-Verify process. Contractors and subcontractors are only permitted to check the employment eligibility of employees hired after signing the MOU. As well, contractors and subcontractors may only verify a new hire’s employment eligibility after the employee has accepted an offer of employment and after the contractor or subcontractor has completed a Form I-9 for the new employee. Finally, the contractor or subcontractor must initiate the verification, at the latest, within three business days after the new employee’s actual start date. It should also be noted that the employee’s start date cannot be accelerated or postponed based on the results of an E-Verify search, unless a final non-confirmation is received.4 In the event of a final non-confirmation, the contract should require that such employees no longer be employed by the contractor or subcontractor.
The time constraints mentioned above are intended to ensure that contractors and subcontractors do not use the E-Verify program as a tool to discriminate against potential new employees. Regardless of the final process chosen by the contractor or subcontractor, verification of new employees should be conducted in a consistent manner, without consideration of the new employee’s race, national origin, sex or any other characteristic prohibited by law. Public employers and contractors may wish to reinforce these underlying regulations with anti-discrimination language in the contract.
While many E-Verify employers have used the system with ease, the practical downside of the use of the system is that, by the government’s own admission, the error rate is 8.5 percent. These errors are cases where U.S. citizens, or otherwise authorized workers, are not given a green light to unrestricted employment. The errors occur because the databases used for the E-Verify program, which are maintained by the government, contain records for some workers that are inaccurate or out of date. Sometimes, the legal worker must make one or a series of visits to different federal agencies in an attempt to acquire the proper agency classification and have the employment authorization block removed. Employers can also be impacted by these errors, as well. For example, there are documented instances of employers who have been successfully sued by workers wrongfully terminated or denied employment on the basis of a faulty E-Verify report. Thus, employers should keep the potential for error in mind when critical employment termination decisions are made.
These procedural regulations constitute the most significant issues for public employers and contractors to consider in their state government contracts and subcontracts in Georgia. In addition to these broader issues, the contract language should also anticipate which party will be responsible for any training and costs associated with participating in E-Verify. As well, the contract should provide that failure to properly participate in E-Verify is a ground for termination of the contract after written notice and failure to cure. Finally, public employers and contractors will want to implement a flow down provision, requiring any lowertier contractors physically performing services under the contract to implement the E-Verify guidelines.