Federal system could level employment playing field

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Construction firms struggling to ensure the legality of workers on job sites may soon see some assistance at the federal level.

This spring, two separate pieces of federal legislation were introduced that mandate use of E-Verify, the internet-based system operated by the Department of Homeland Security in partnership with the Social Security Administration.

The system, which is currently voluntary, is similar to the mandated I-9 verification program through which employers verify that newly hired employees are legally allowed to work in the country.

If implemented, E-Verify would provide a comprehensive framework for all contractors to ensure the legality of hires, said Jeff Shoaf, senior executive director for government and public affairs for the Associated General Contractors of America.

The change could help smaller firms in particular, he said, because working to comply with federal immigration and work documentation standards can be a challenge for companies with fewer staff members.

“Someone with a small company probably has to wear four or five hats,” Shoaf said. “Larger companies are better equipped to identify documents that might be forged.”

As it is, he said, employers rely on the I-9 process and the Immigration Reform and Control Act of 1986.

“I think this would make it simpler and level the playing field, making it easier for small companies to do the same thorough job as larger ones in validating employees,” he said.

But Wisconsin employment and immigration lawyers suggest that if the system is made mandatory, it could initially be challenging for all contractors.

“I think for construction, they may have a bigger challenge with employee verification because there are always people working remotely,” said immigration attorney Grant Sovern of Quarles & Brady LLP.

In May, U.S. Rep. Heath Shuler, D-NC, introduced the SAVE Act (H.R. 2000) which proposes a four-year phasing in process for all employers to use E-Verify. The federal government, federal contractors and large employers with more than 250 workers would be required to comply the first year, however.

On June 14, U.S. Congressman Lamar Smith, R-TX, introduced similar legislation: the Legal Workforce Act of 2011.

Both bills are designed to reshape immigration laws, in the wake of the United States Supreme Court ruling that upheld Arizona’s law mandating use of E-Verify in the state.

While Wisconsin has yet to mandate the system, several other states, including Illinois, have implemented legislation similar to Arizona.

Sovern said one of the primary challenges for contractors and a potential loophole for workers could be an element of the E-Verify process that allows employees to continue working for up to 10 days if the system initially indicates a problem with a worker.

The provision could prompt some workers to jump from job to job in the construction industry, collecting paychecks without ever facing consequences, he said.

“The purpose of the legislation is to flush out people who are not qualified to work,” Sovern said. “But it could make people bounce around more.”

The free E-Verify system works by cross-checking Social Security numbers of new hires with Social Security Administration and Department of Homeland Security databases.

In the event that a mismatch occurs, resulting in a “tentative non-confirmation,” it takes 10 days to process the case, during which time employees cannot be fired or have their hours reduced.

If a final non-confirmation is issued, then an employee can contest the decision or voluntarily quit.

But until a final decision is made by the SSA or DHS, employers are on the hook for training and paying employees who may not be eligible to work.

“What is frustrating for employers is that it might take 10 days to train someone and you might not even get any real work out of them,” said labor and employment attorney Ben Kurten, of Reinhart Boerner Van Deuren SC, Milwaukee.

Shoaf acknowledged the potential for initial confusion should E-Verify become mandatory, but said AGC members haven’t raised objections to the possibility of having to use the system.

“If anything, I think the concern is just with adjusting to the change, rather than the new system,” he said. “I think membership supports the idea.”

Jack Zemlicka can be reached at [email protected].