In the midst of vast political and economical changes, the challenge of hiring a competent and legal workforce presents the nation with a demanding task. The federal government is not immune to this challenge and is taking new steps to ensure that its workforce is both stable and dependable. As of June 6, 2008, the Federal Acquisition Regulation (FAR) was amended by Executive Order 13465 requiring any general contractor or subcontractor - working on or looking to work on federal contracts - use an employment status verification system for all new hires. Once amended, final approval was still required which took approximately a year and a half to achieve. The final rule went into full effect on Sept. 8, 2009. It requires employers to enroll in E-Verify “if and when they are awarded a federal contract or subcontract.”

Paul Sammataro, president of Samm’s Heating and Air Conditioning in Plano, Texas, who has had to refuse to hire an illegal applicant in the past, however, doesn’t have a problem with the E-Verify mandate as long as the federal government enforces the system.

“I feel in these days it is important to know who is working on a federal job,” he said. “And, just like I have a right to hire who I feel is qualified, the government should also have the right.”

In a press statement released from the Office of the Press Secretary, Homeland Security Secretary Michael Chertoff, further explained the requirements of the amended rule.

“It directs all federal departments and agencies to require contractors, as a condition of each future federal contract, to agree to use an electronic employment eligibility verification system - as designated by the Secretary of Homeland Security - to verify the employment eligibility of all persons hired during the contract term and all persons performing work within the United States on the federal contract.”

Chertoff designated the E-Verify program. “A large part of our success in enforcing the nation’s immigration laws hinges on equipping employers with the tools to determine quickly and effectively if a worker is legal or illegal,” said Chertoff. “E-Verify is a proven tool that helps employers immediately verify the legal working status for all new hires.”

Formerly known as Basic Pilot, E-Verify is a Web-based system that electronically verifies the employment eligibility of newly hired employees.

PROCESSING ENTRIES

General contractors and subcontractors alike are required to comply with this new ruling for all federal contracts. For some this will mean sweeping changes in their hiring practices. Most, however, are already implementing good hiring principles in their daily business practices by verifying driver’s licenses, social security cards, birth certificates, and green cards. A lot of contractors also conduct background checks at the county, state, and federal level.

With the E-Verify system, contractors are required to enter information from the Employment Eligibility Verification Form (I-9), including the name, date of birth, social security number, and citizenship status, into the computer. The system then transmits the data, verifying the information against the SSA’s numerical identification file (NUMIDENT) database. As long as everything matches, the process ends there and the employer receives a confirmation response. If something doesn’t match, the employer receives a Tentative Nonconfirmation (TNC) notice and is required to inform the newly hired employee in writing, immediately. The employee then has eight days to contest the results and resolve any misinformation.

“Until the TNC is resolved, even if it takes longer than eight days, the employee must be allowed to keep working and cannot be fired or have any other employment-related action taken against him or her because of the TNC,” said a governmental release.

If the employee fails to contact the SSA within the eight days, they are considered a no show and a final nonconfirmation notice is issued to the employer. It is at this time that the employer can legally take action. If the employee amends the SSA misinformation issue within the appropriate timeframe, the employer is notified and receives a confirmation form.

For the non-citizen employee, the E-Verify process is two steps. Once their information passes successfully through the SSA process, it is then processed against DHS databases. The confirmation and TNC procedures that follow are the same as the SSA procedures listed above.

“Currently, 99.5 percent of all work-authorized employees verified through E-Verify were verified without receiving a TNC or having to take any type of corrective action.”

According to the federal government, the most common reasons for a mismatch to occur are the employee is not authorized to work; the employee has not yet updated the SSA’s records to reflect name, citizenship, or status changes; or the employer made an error entering information into the system.

Illegal immigration has sparked a large debate across the nation, and although many are unhappy with the illegal employment situation, some contractors do not consider the involvement of the federal government to be an optimal solution. Steven Long, president of service and residential at Gastonia Sheet Metal in Gastonia, N.C., has some reservations about the federal government mandating verification for its contracts.

“There should be some type of verification required,” he said. “I am not sure that mandates from the federal government is the way to go, but something needs to happen. When it comes to illegal workers, companies that knowingly hire them should be fined or dealt with somehow in this manner.”

BEYOND THE BORDERS

Contractors who aren’t participating in federal contracts are not immune to the issue of hiring a legal workforce. The hiring practice also involves legality issues and can affect the reputation of reputable contractors.

As concern for this issue grows, legality and conscientious contracting aren’t the only reasons for contractors to be sure of whom they hire. Other companies and entities soliciting bids are beginning to require contractors to prove or verify that their workforce is legal before they are awarded the contract. Some are requiring the information before even considering their bids, just as the federal government is now doing.

Jeff Somers, vice president and COO of Monsen Engineering in Fairfield, N.J., has had experience with this practice. His HVAC mechanical contracting company routinely conducts background checks at the county, state, and federal level for all new hires. For one of the company’s contracts, however, this was not enough.

“We had to get Transportation Worker Identification Credential [TWIC] cards at a refinery we take care of,” he explained. “This card also looks deep into your background and your status in the country. If we had refused to participate, we would have been released from the contract and lost the work.”

What the future holds for widespread, mandatory use of E-Verification is unsure, but it is not likely that the issues of legal immigration and verified employment status are going away in the near future.

For more information, visit www.uscis.gov.

Sidebar: Answering E-Verify FAQs

When a contractor wins the bid on a federal contract that contains the Federal Acquisition Regulation (FAR) E-Verify clause, the contractor and any covered subcontractors on the project are required to enroll in the E-Verify program within 30 calendar days of the contract or subcontract award date.

Once enrolled, the contractor has 90 days from the enroll date to initiate verification queries for employees already on the contractor’s staff who will be working on the contract and to begin using the system to verify newly hired employees. After this 90-day phase-in period, the contractor will be required to initiate verification of each newly hired employee within three business days after their start date. Pre-screening of job applicants is not allowed; the system may be used for new hires only after the employee has been offered the job and has accepted.

If a contractor has already enrolled in E-Verify and the company was awarded a federal contract after Sept. 8, 2009, the contractor will need to update the company profile through the “Maintain Company” page once the contract has been awarded. Once the company is designated as a federal contractor, all E-Verify users at the company will need to take a federal contractor tutorial that explains the new policies and features that are unique to federal contractors.

Contractors must continue to use E-Verify for the life of the contract for all new hires, whether or not they are employees assigned to the contract, unless certain exceptions apply.

Source: U.S. Citizenship and Immigration Services

Publication date: 11/02/2009