News Column

Law Requires Checks on Employees' Legal Status

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A North Carolina law requiring the electronic verification of employees' legal standing to work in the United States has rolled out to private employers.

E-Verify is a free online system operated by the U.S. Department of Homeland Security. It serves as an additional verification to employers' standard I-9 obligations. All U.S. employers must complete and retain an I-9 form for each individual they hire in the U.S.

With E-Verify, information is checked against data contained in federal databases at Homeland Security and the Social Services Administration.

Since September 2009, all federal contractors and subcontractors who have been paid more than $3,000 in compensation have been required to use E-Verify to confirm that all new hires and all employees working directly on federal contracts are authorized to work.

The N.C. General Assembly passed in 2011 a law requiring cities, counties and private employers to use E-Verify with new hires. North Carolina is one of 20 states -- including every Southern state -- that requires the program.

N.C. private employers with more than 500 workers were mandated to comply with the law on Oct. 1.

Economists say the law will carry its most impact after Jan. 1, when employers with at least 100 workers are required to start complying. The compliance deadline for employers with at least 25 workers is July 1.

"I hear from small businesses every week who have been outbid by competitors employing illegals and who have tax, insurance and unemployment liens," said Speaker Pro Tem Dale Folwell, R-Forsyth, a supporter of the legislation.

"They constantly undercut prices by not following the rules. This law will reward law-abiding companies for doing the right thing and punish the ones who aren't."

But employers cannot use E-Verify until an employee is hired.

If an employee is not confirmed by E-Verify, the employee has the right to challenge the determination, typically a 30-day window.

"A fair number of errors'

As each phase of the law goes into effect, the N.C. Labor Department can begin accepting complaints against employers who may have unauthorized workers on their staff. Employers failing to comply with the law face civil penalties of up to $10,000 and fines beginning at $1,000 for each employee without E-Verify work authorization.

Dolores Quesenberry, communications director for the state agency, said no complaints have been registered about large private employers not using E-Verify.

N.C. Hispanic Chamber of Commerce officials say the agency has conducted seminars with businesses on how to comply with E-Verify. They did not comment on whether E-Verify serves as a hiring deterrent.

The law has spurred little talk among the local business community because it hasn't affected the majority of businesses to date, said Gayle Anderson, chief executive and president of the Winston-Salem Chamber of Commerce.

"Since not a lot of hiring is happening right now, most employers probably haven't focused on it yet," Anderson said. "I'm sure as the January and next July dates get closer, we will get some questions about it."

The hassle for employers is that they can't do E-Verify until the employee is hired, which can put the employers back where they started before the hire, some human-resources consultants have said.

The E-Verify system is not perfect, according to the consultants. E-Verify's error rate on red-flagging applications could be as high as 10 percent, some said.

Anderson said some employers who are using E-Verify voluntarily have concerns that "it generates a fair number of errors."

"That causes problems with verifying supplemental information a prospective employee might provide. It puts a burden on the employer to determine the validity of that information, which can be difficult," Anderson said.

Allen Gray, director of the utilities division for Carolinas AGC, said some members have dealt with errors with applicants' Social Security numbers.

"Employees have 30 days to fix the problems, which is plenty of time if the error is fixable," Gray said. If employees who are tagged in the system don't show up again to work, "then you may have your answer," Gray said.

Plenty of legal immigrants are waiting to be hired, so "E-Verify gives us another layer of certainty about who is hired," Gray said. "Before, general contractors had to accept the ID we were handed."

A legal workforce

John Dean, human resources director for Forsyth County, said the county has been using E-Verify since Oct. 1, 2011.

"We have not had any issues to date with a new hire being identified as a non-confirmation," Dean said.

Dean said county officials take information from new hires from their completed I-9 form and enter it into the E-Verify program within three business days. He said pre-employment screening is prohibited.

"The program is designed to virtually eliminate Social Security mismatches, improve the accuracy of wage and tax reporting, protect jobs for authorized workers and help employers maintain a legal workforce," Dean said.

In 2008, the city of Winston-Salem changed its contracts with private companies, requiring them to comply with federal laws that mandate companies to verify that new hires are in the country legally. At that time, Mayor Allen Joines said adding E-Verify to that process could create problems.

Carmen Caruth, human resources director for Winston-Salem, said the city has been using E-Verify for close to two years. "Our experience has been positive, and it appears to be reliable," Caruth said.

David Fairall, director of human resources for Winston-Salem/Forsyth County Schools, said he was skeptical when the legislature began requiring that public schools and state agencies use E-Verify.

Fairall said E-Verify has spotted several possible fake documents.

"We very rarely have any issues -- most of them involve folks not having up-to-date domestic identification," Fairall said. "The system identifies issues when they are there and provides a good process for getting the issues cleaned up with the proper domestic agencies."

Subcontractor oversight

Some lobbying groups expressed reservations about the law when it was discussed in the General Assembly.

For example, all E-Verify documentation on each employee must be retained for the duration of the worker's employment, and for at least one year after the employment relationship ends, according to the Triad law firm of Spilman Thomas & Battle PLLC.

Carolinas AGC urged legislators to minimize the administrative burden on contractors and educate businesses about E-Verify.

"We initially had some concerns with the legislation since general contractors would have been responsible for policing the subcontractors, but that language was taken out," Gray said.

Even though E-Verify is free to use, some employers haven't been using it out of overall concerns about additional government regulations, said Michael Walden, an economics professor at N.C. State University.

"Any governmental regulation adds to business costs and must be balanced against the intended benefits of the regulation," Walden said.

"So, as with the Affordable Care Act, ignoring whether one supports or opposes the intent of the new regulations, they may have a dampening impact on business hiring and expansion just at a time when new hiring is crucial.

"That said, my view is that any new government regulations are not the major impediment to economic improvement," he said.

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