Chamber of Commerce Fails to Stall E-Verify

Posted by marykeating on September 13, 2009 under Government contractors | Be the First to Comment

The United States Chamber of Commerce tried and failed to convince the United States District Court for the District of Maryland to issue an injunction against the implementation of the e-verify system.   The Fourth Circuit just refused to overturn the decision.  That means that most government contractors will now include in their contracts clauses requiring that new and existing employees pass the e-verify test.  The idea is to confirm citizenship or legal working status before the employee can be paid under the government contract.

So, why did the Chamber of Commerce object to this?  One complaint, of course, is the cost of doing the verification in time and training.  Employers need to keep the same paper records as before, but now have to supplement with the e-verify checking.  At first, all government contracts of $3,000 or more would be required to comply.  Now the threshold is $100,000 for prime contracts, but subcontractors of $3,000 or more must agree to confirm the legal status of their employees.  Secondly, the Chamber challenged the “requirement” of using the e-verify system itself.  The Court held that because the regulation applies only to government contractors, it remains voluntary.  The companies can choose not to do business with the government, and in that way can avoid the e-verify system.  Third, the e-verify system tosses up a fair amount of false problems.  Perfectly legal employees are flagged by the system, causing more time and effort to fix.  Think the first couple of years after 9/11 at airports, when lots of people were stopped for reasons the airports were not allowed to reveal.

Since the regulation is now in effect, here is what it requires.  A contractor has to enroll in the e-verify program within 30 days of the contract award, and then check everyone who will work on the contract within 90 days after that.  Contractors already in the program must run the check within 30 days.  Employers have to check new hires within three days of their hire.

Given the Court’s analysis, the fear that the e-verify system will spread to the entire universe of United States workers is premature.  The use of the system will require congressional action, not just a presidential executive order.