If you do business with the federal government, you've got a new set of rules to follow.
President Bush issued an executive order on June 6 requiring all federal contractors to use the U.S. government's E-Verify system to confirm the legal status of their employees. The order applies to new hires and to current employees who work on future federal contracts. Businesses failing to abide by this directive risk losing federal contracts.
What the order does not address, however, is whether these requirements will trickle down to the subcontractor level. Given this administration's generally aggressive approach to enforcing employers' verification obligations, there is a strong possibility that it will attempt to have this apply to subcontractors as well. The Department of Homeland Security will be issuing regulations to implement the order.
E-Verify was originally established in 1997 as a voluntary tool employers could use to confirm employment information and prevent illegal aliens from obtaining jobs. The system is somewhat controversial; the state of Illinois forbids its use while employers in Arizona are mandated by state law to use the process.
This is not the first time the federal government has attempted to "encourage" employers to use E-Verify. Most recently, employers in high-tech industries that use the verification system were rewarded for their participation by having certain foreign employees' visas extended. When foreign students graduate from college they are eligible for one year of U.S. work authorization. If these students found employment in engineering, science or technology fields with employers that use E-Verify, they became eligible for a 17-month extension of their work authorization. This extension was not available for foreign workers whose employers do not use E-Verify. The June 6 executive order applies to all levels of employees, whether migrant farm help or scientific researchers, and could create a shortage of employees in certain industries.
The federal government is less than sympathetic to criticism of the E-Verif requirement. "Because of the worksite enforcement policy of the United States and the underlying obligation of the executive branch to enforce the immigration laws, contractors that employ illegal aliens cannot rely on the continuing availability and service of those illegal workers, and such contractors inevitably will have a less stable and less dependable workforce than contractors that do not employ such persons," the executive order states.
The Labor and Employment Group at Warner Norcross & Judd is monitoring these legal developments and advising clients on their implications for employers. Contact your WN&J Labor attorney or Lou Rabaut, practice group chair, at 616.752.2147 or firstname.lastname@example.org.