ABC Far E V 091709 Webinar Presentation

KELLER AND HECKMAN LLP Copyright © 2009

Thank you for joining us!

The “Confronting the New E-Verify Mandate for Federal Contractors” Webinar will begin shortly.

Make sure you have access to the webinar materials! Find them at www.abc.org/e-verifywebinar.

http://www.abc.org/e-verifywebinar


PLEASE NOTE:

The audio instructions for this webinar have been changed.Audio can now be accessed by dialing:

(866) 576-7975 PIN: 177491Materials, including PowerPoint, available at:www.abc.org/e-verifywebinar



Interested in a more in-depth look at E-Verify and other critical HR issues?

Don’t miss the HR Construction Professionals Conference

October 22-23, 2009Disney’s Contemporary Resort ■ Lake Buena Vista, Fla.

www.abc.org/hrconf

Special Offer for E-Verify Webinar attendees: Register by Wednesday, Sept. 23 and

save $50 on your registration!

Contact Kia Lor at [email protected] or (812) 812-2021 to register.

http://www.abc.org/hrconf

mailto:[email protected]


Confronting The New E-Verify Mandate for Federal Contractors

Mary E. Pivec, Esq,Keller and Heckman LLPWashington, D.C.(202) [email protected] Thursday, September 17, 20092:00 p.m. – 3:30 p.m. (ET)



E-Verify Overview


HARD HAT FACTS

• All Prime Federal Construction Contracts (includes ARRA)

• Awarded on or after September 8, 2009• Valued over $100,000• Performance over 120 Days• Should contain FAR Clause 52.222-34


FLOW DOWN LIABILITY

If You Are the Prime Contractor• You must include the E-Verify Clause in

all subcontracts valued above $3000 regardless of term

• You are liable for Subcontractor compliance at all tiers

• You must police Subcontractor compliance


Employees Assigned to Contract

• 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 don’t generally apply to construction: – Employee holds top secret security clearance– Agency head waiver


AFFILIATES OF THE CONTRACTING ENTITY

• 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


Touchy Independent Contractor Issues

• 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


COMPLIANCE TIME LINEContract Award

Day 1Contractor Must Enroll in E-Verify and Sign MOU, or Update Registration to Federal Contractor Status

No later than Day 31


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


TOTAL WORKFORCE OPTIONContract Award

Day 1Contractor Must Enroll in E-Verify and Sign MOU



Contractor Must Have Entered E-Verify Queries for Total US Workforce and Begun E-Verifying All New US Hires Companywide within 3 Work Days


Compliance Countdown• 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• 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


I-9 AUDIT OPTION

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


WHEN AN EMPLOYEE MUST COMPLETE A NEW I-9

• 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


Mandatory Postings


Initial Verification Query


Case Details Page Reporting SSA TNC


Required Procedures If Employee Query Results in TNC

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


PHOTO SCREEN PROCEDURE

• Activated automatically when Employer enters I-551 or I-766 data• If available in DHS database, photo is displayed in Case Report• Employee 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


Forms of Prohibited Discrimination

• 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


DOES E-VERIFY PROVIDE EMPLOYER SANCTIONS IMMUNITY?

• 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 THE GOVERNMENT INDEMNIFY AN EMPLOYER FOR ACTIONS TAKEN BASED ON E-

VERIFY INFORMATION?

• 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


DEBARMENT GROUNDS

• 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


Policing Subcontractors

• 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


DHS AUDIT TRIGGERS

• 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


Questions?


Thank you for your participation!Materials, including the PowerPoint presentation,

are available at www.abc.org/e-verifywebinar.

For more information, contact:Mary E. Pivec, Esq,

Keller and Heckman LLPWashington, D.C.

(202) [email protected]




Interested in a more in-depth look at E-Verify and other critical HR issues?

Don’t miss the HR Construction Professionals Conference

October 22-23, 2009Disney’s Contemporary Resort ■ Lake Buena Vista, Fla.

www.abc.org/hrconf

Special Offer for E-Verify Webinar attendees: Register by Wednesday, Sept. 23 and

save $50 on your registration!

Contact Kia Lor at [email protected] or (812) 812-2021 to register.

http://www.abc.org/hrconf


ABC Far E V 091709 Webinar Presentation

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Transcript of ABC Far E V 091709 Webinar Presentation