On November 14, 2008, the Bush administration published a final rule directing federal agencies to require that certain federal contractors agree, beginning January 15, 2009, to electronically verify the employment eligibility of their employees. The following contains general information about this new regulation.

What does the rule require?

The rule requires federal contractors to use the E-Verify system to verify employment eligibility of all persons hired during a contract term and current employees who perform services under the contract for the federal government within the United States.

What is E-Verify?

E-Verify is a free, Internet-based electronic employment eligibility verification system administered by the U.S. Department of Homeland Security's Citizenship and Immigration Services in partnership with the Social Security Administration.

What federal contractors are subject to the rule?

Federal contracts awarded and solicitations issued after January 15, 2009, will include the E-Verify clause.

What if our organization is a federal contractor with an ongoing contract?

After the January 15, 2009, effective date, existing indefinite-delivery/indefinite-quantity contracts should be modified bilaterally to include the E-Verify clause for future orders, if the remaining period of performance of the contract extends at least six months after the effective date, and the amount of work or number of orders expected under the remaining period of performance is substantial.

Are there any exemptions from the rule?

Federal contracts exempt from this rule include those that are for less than $100,000, those that are for commercially available off-the-shelf items (or such items with minor modifications) and related services, those with performance terms of less than 120 days and contracts where all work is performed outside the United States.

Does the rule apply to subcontractors?

Subcontractors with subcontracts of more than $3,000 for services or construction will also be required to participate in the E-Verify program.

What employees must be verified?

Federal contractors must use E-Verify to confirm the employment eligibility of (1) all newly hired employees, and (2) all existing employees who are classified as "employees assigned to the federal contract."

What are "employees assigned to the federal contract"?

An "employee assigned to the federal contract" is defined as any employee hired after November 6, 1986, who is directly performing work in the United States under a contract that includes the E-Verify clause. An employee is not considered to be directly performing work under the contract if the employee normally performs support work, such as indirect or overhead functions, and does not perform any substantial duties under the contract.

What does our organization need to do and by when do we need to do it?

When an employer is awarded a federal contract or subcontract that requires participation in E-Verify, the employer must enroll in E-Verify within 30 calendar days of the contract or subcontract award date, if the employer is not already enrolled.

What if our organization is already using the E-Verify system?

If your organization is already enrolled in E-Verify at the time it is awarded a covered contract or subcontract, you must update your company profile through the "Maintain Company" page of the E-Verify system to reflect your status as a federal contractor.

Does our organization have to rE-Verify employees whose employment eligibility has already been confirmed through the E-Verify program?

No. Employees whom the employer has already verified should not be re verified. In addition, those who have an active federal agency HSPD 12 credential or who have been granted and hold an active U.S. Government security clearance for access to confidential, secret or top secret information in accordance with the National Industrial Security Program Operating Manual do not need to be verified.

What are the other requirements of participating in E-Verify?

An employer participating in E-Verify must post notice of its participation, as well as the anti-discrimination notice issued by the Office of Special Counsel for Immigration-Related Unfair Employment Practices of the U.S. Department of Justice. The posting must be in a prominent place that is clearly visible to prospective employees and all employees who are to be verified through the system.

Are there other requirements of the new rule about which our organization should be aware?

Yes. The new rule contains other detailed compliance requirements that may affect your organization. If you have questions about whether these requirements may apply to your organization or what you need to do to comply.

FMLA Revised Regulations Published

The U.S. Department of Labor (DOL) recently released its long-awaited revisions to the regulations under the Family and Medical Leave Act (FMLA). The new regulations will take effect on January 16, 2009, and are intended to clarify employer and employee responsibilities under the law.

The revised regulations are the first major overhaul of FMLA regulations since the statute was enacted more than 15 years ago. In addition, the regulations include guidance on implementing the two new military leave entitlements enacted as part of the 2008 National Defense Authorization Act earlier this year. During the public comment period, which ended April 11, 2008, the DOL received more than 5,000 comments on the proposed changes, from such constituencies as employers, business groups, employee organizations and family rights advocacy groups.