www.khlaw.comWashington, D.C. ● Brussels ● San Francisco ● Shanghai
Mary PivecPartner
Keller and Heckman LLP1001 G Street, N.W.
Washington, DC 20001202-434-4298
Confronting The New E-Verify Mandate for Federal Contractors
September 30, 2009
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All Federal Acquisition Contracts for• Commercial Services (excluding services
provided by a COTs vendor in connection with the sale),
• Non-commercial Services, and• Construction
Awarded on or after September 8, 2009 Valued over $100,000 Performance over 120 Days
Contract Coverage
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Employees Subject to E-Verify
All existing employees directly assigned to a covered contract
All new hires – whether or not assigned to a covered contract
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Hired after 11/6/86 Directly performing contract work Excludes support staff who perform indirect
or overhead functions and who don’t perform substantial contract work
Limited exceptions apply: • Employee holds top secret security clearance• Agency head waiver
Employees Assigned to Contract
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The Prime Contractor must include the E-Verify Clause in all
subcontracts valued above $3000, regardless of the term or intermittent nature of subcontractor performance, provided the subcontract involves commercial, non-commercial or construction services
is liable for Subcontractor compliance at all tiers
Flow Down Liability
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If Affiliate provides services valued in excess of $3000 for performance of a covered contract, Affiliate likely is a subcontractor subject to E-Verify
Possibilities:• Personnel services• Equipment leasing• Materials purchasing• Business management
Affiliates of the Contracting Entity
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True Independent Contractors • Still must enroll in E-Verify if paid $3000
and work 30 days or more• E-Verify run through obligation depends on
whether operates as self-employed Misclassified Independent Contractors
• Somebody’s employee• Prime has liability if no I-9 and no E-Verify
confirmation as work authorized
Touchy Independent Contractor Issues
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Contract Award
Day 1Contractor Must Enroll in E-Verify and Sign MOU, or Update Registration to Federal Contractor Status
No later than Day 31
No later than Day 120
Contractor Must Have Entered E-Verify Queries for Existing Employees Assigned to the Contract or 30 Days After Assignment, Whichever Is Later; Begin E-Verifying All New Hires Companywide within 3 Work Days
Compliance Timeline
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Contract Award
Day 1Contractor Must Enroll in E-Verify and Sign MOU and designate Total Workforce option
No later than Day 31
No later than Day 210
Contractor Must Have Entered E-Verify Queries for Total US Workforce and Begun E-Verifying All New US Hires Companywide within 3 Work Days
Total Workforce Option
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Identify E-Verify Awards
Notify Subs – Modify Subcontracts
Review MOU Enroll in E-Verify Designate E-Verify
Compliance Czar, E-Verify Sites and Authorized Users
Purchase necessary computer equipment and web access
Modify handbooks
Notify Unions – engage in impact and effects bargaining if requested
Train Managers, Supervisors and Users
Identify all existing employees subject to E-Verify
Audit I-9s to E-Verify standards or prepare new I-9s for the entire workforce
Post DHS & OSC Notices
Compliance Countdown
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Before initiating E-Verify queries
Must confirm names, date of birth, immigration status, ID numbers and work authorization status by speaking with each employee
Employee must provide a social security number in Section 1 Existing I-9s must be segregated into those which may be updated
with the employee’s assistance and those requiring a new I-9 If the employee previously presented a US passport or I-551 that was
valid when presented but it has since expired, and work authorization is still current, an employer is prohibited from requiring the employee from presenting a currently valid US passport or I-551 for updating purposes
I-9s must be corrected, unless DHS rules require a new I-9 Selective application of the new I-9 requirement could result in liability
for national origin or immigration status discrimination Retain a copy of I-551 or I-766 if presented
I-9 Audit Option
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Presented an expired document on old I-9 Designated alien status in Section 1 and work
authorization has expired Presented Column B document lacking photo or
you can’t tell because you didn’t retain the document
Was a non-citizen but couldn’t complete Sec. 1 attestation
Changed immigration status Changed name Failed to complete prior I-9 properly
When An Employee Must Complete a New I-9
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The Employer’s Representative must take the following actions:
Print TNC Notice from the E-Verify system Meet with the Employee to determine if he will contest – no coercion
permitted Get Employee to check off his decision and sign and date the Notice Sign and date the Notice, certifying the authenticity of the Employee’s
signature and affirming, to the best of Representative’s knowledge, that the Employee’s choice was knowing, voluntary and uncoerced
Record the Employee’s choice in the E- Verify system If the Employee contests SSA TNC, must print out SSA Referral Letter
and instruct Employee to present it at a Social Security office within 8 federal work days or be subject to FNC; SSA automatically notified
If the Employee contests DHS TNC, print the DHS Referral Letter and instruct Employee to contact DHS through its toll free hot line within 8 federal work days or be subject to FNC; DHS automatically notified
If Employee declines contest, system will report FNC
Required Procedure if Employee Query Results in TNC
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Activated automatically when Employer enters I-551 or I-766 data If available in DHS database, photo is displayed in Case Report Employer compares photo on screen to the photo on the Employer’s copy of the I-551 or I-766 and clicks one of the following:
•“Yes” – Reasonable Certainty that photographs are identical•“No” -- Photographs are not identical•“Cannot Determine”
If not “Yes” – Employer must print out Photo TNC Notice, present it to Employee, ask if he wishes to contest, execute Notice, report response, print DHS Photo Referral Letter, and direct Employee to call DHS hot-line within 8 Federal work days The Employer mails a copy of the Employee’s document to DHS as directed at DHS expense
Photoscreen Procedure
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Using E-Verify to prescreen job applicants Selectively using E-Verify based on citizenship, immigration or
national origin status E-Verifying existing employees not subject to the FAR E-Verify
clause or “Total Workforce” option Requiring alien workers to produce I-551 or I-766 cards –
unless they produce a restricted Social Security Card Requiring any employee to obtain a printout from the Social
Security Database or other written verification of the Social Security number from the SSA
Absent knowledge that the employee is not work authorized, taking adverse action before FNC is issued
Accessing the E-Verify system to investigate an employee’s immigration status after receipt of “work authorized” confirmation during the same period of employment
Forms of Prohibited Discrimination
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No. If you follow all the rules, and E-Verify reports that an employee is “work authorized,” you get a rebuttable presumption you didn’t violate the knowing hire provisions with respect to that employee
If you continue to employ any worker after receiving a FNC notice, there will be a rebuttable presumption that you knowingly violated the sanctions law, if the employee turns out to be unauthorized
If you fail to resolve cases in the E-Verify system after a FNC is reported, you are subject of a civil money penalty ranging from $550-$1000 per case
Does E-Verify Provide Employer Sanctions Immunity?
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No - Employer is solely liable if it gets sued The 1996 statute authorizing new hire
verifications provides civil immunity for actions taken in good faith - raised as good faith defense to wrongful discharge or discrimination claim
No law or regulation provides immunity from suit by existing workers
Does the Government Imdemnify an Employer for Actions Taken Based on E-Verify Information?
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Contractor found to have used E-Verify to discriminate against individuals in hiring and employment
Contractor’s MOU Terminated by DHS Contractor found to have knowingly
hired unauthorized workers or committed immigration crimes
Debarment Grounds
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Make compliance material term in subcontract
Require independent third party audit and certification of compliance after 180 days
Require Subcontractor certification of compliance on weekly payrolls
Require Subcontractor cooperation in any internal or Gov’t investigation or audit relating to E-Verify, I-9 or immigration compliance (including document fraud and identity theft)
Require prompt notification of Gov’t investigation of Subcontractor and/or its Subcontractors relating to E-Verify, I-9 or immigration compliance (including document fraud and identity theft)
I-9 Subcontractor Employees Audit Subcontractor I-9s Interrogate Subcontractor
employees regarding immigration status
Require Subcontractors to register you as their Designated Agent in E-Verify system
Accessing the E-Verify database to investigate the immigration status of Subcontractor employees
Policing Subcontractors
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Conduct detectable through DHS data mining• Excessive E-Verify use including prescreening applicants• Under-use of E-Verify including selective verification• Failure to resolve and close FNC cases• Use of duplicate employee names and SSN#s
Complaints by Government investigators, civil rights groups and unions alleging unauthorized or discriminatory use of E-Verify data
Contract auditor and COTR referrals
DHS Audit Triggers
www.khlaw.comWashington, D.C. ● Brussels ● San Francisco ● Shanghai
Mary PivecPartner
Keller and Heckman LLP1001 G Street, N.W.
Washington, DC 20001202-434-4298
Thank You!