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Fear of compliance

Initially vilified, E-Verify is much improved and effective — too effective for some.

Mike Vogel | 9/27/2018

Initially vilified, E-Verify is much improved and effective — too effective for some.

E-Verify is an internet-based program started in 1997 by the federal government, administered by the Department of Homeland Security and Social Security Administration. It’s been open to all employers voluntarily since 2004. It electronically compares the information submitted by a prospective employee with data from the Social Security Administration and Department of Homeland Security. A company receives either a confirmation that an employee is good to go or a “temporary non-confirmation.” Those workers have a period of time to provide supplemental information to get confirmation. Often at this stage, those here illegally abandon the hiring process with that employer.

In 2011, the Florida Legislature followed the federal government’s lead and required all of its contractors and their subcontractors to use the federal E-Verify system to ensure their workers are all legally eligible to work in the United States.

The Legislature, unlike legislatures in Arizona and eight other states, went no further. The program is optional for individual employers in Florida. Earlier this year, the state Constitution Review Commission rejected a proposal to let voters in November decide whether to mandate E-Verify for all employers.

The Florida Chamber of Commerce and industry groups oppose such a mandate for Florida. The chamber says E-Verify is “deeply flawed.” Immigrantdependent industries such as agriculture and tourism complain E-Verify has glitches and errors and also say using it fails to protect them from onerous federal inspections and penalties if they use it in good faith but wind up hiring unauthorized immigrants anyway.

There’s another reason some Florida industries oppose it. E-Verify could work too well. Mike Carlton, labor relations director for the Florida Fruit & Vegetable Association, says E-Verify would be “problematic” for his and other industries. While unauthorized workers are a fraction of the state labor force, they are concentrated in hospitality, construction and agriculture. “How do you replace that workforce if it goes away?” Carlton says.

All employers must have an I-9 form filled out for each employee. The forms require a prospective employee to present documentation like a Social Security card and government-issued picture I.D. such as a driver’s license that are easy enough for job applicants to fake or obtain.

Carmen Pino, assistant special agent in charge of Homeland Security Investigations, says that while some employers may exercise “willful blindness” in hiring, others are duped by excellent fake documents. He says it’s important that workers, particularly those around critical infrastructure, are who they say they are.

While it initially suffered from errors, E-Verify has been greatly improved, attorneys say. The federal government “put a lot of resources and money into the system. We’re in a place where the error rate is extremely low,” says Ian Macdonald, co-chair of Greenberg Traurig’s global immigration practice.

“My employers who use it, love it,” says Cheryl Wilke, partner-in-charge of the Fort Lauderdale office of Hinshaw & Culbertson and a labor and employment attorney. “The times when it is flawed due to something other than input error are about zero,” she says.

Attorney Tom Loffredo, managing shareholder at GrayRobinson’s Fort Lauderdale office, says that while the law doesn’t give employers an out for using E-Verify, use of the system does show good faith, which would mitigate against government penalties if an inspection turns up bad hires.

Who uses the system varies by industry. Macdonald says employers of professionals and semi-professionals with a low likelihood of employing an undocumented alien use it to lower their risks.

Employers in industries such as agriculture and hospitality that depend on lower-wage immigrant labor, in contrast, are more resistant. “By installing E-Verify, they feel that they’re cutting themselves off from necessary workers — ‘if we enroll in E-Verify, this may put us at a competitive disadvantage to competitors who are not enrolling in E-Verify,’ ” Macdonald says.

Homeland Security Investigations, meanwhile, has stepped up its audit and inspection of companies that only use I-9s. Since January, HSI issued notices of audits to 5,200 employers nationally. Last year, 6,093 worksite investigations led to businesses paying $97.6 million in judicial forfeitures, fines and restitution along with 675 criminal and 984 administrative worksite-related arrests. “Penalties have increased,” says Gunster immigration attorney Mariana Ribeiro. “Perhaps more importantly, cases against violators have been widely publicized and, of course, have an adverse impact. It’s the new era. The attitude of failing to comply as an acceptable cost of doing business is no longer timely.”

Compliance troubles have helped grow a second, small government program called IMAGE — “E-Verify on steroids,” Macdonald says — with rigorous requirements including internal I-9 audits at least yearly and a government I-9 inspection. Macdonald says that for a company being looked at by inspectors, IMAGE shows the company is “a good corporate actor. It’s trying to do the right thing.” HSI, as part of a settlement agreement with a company in trouble during an audit, may recommend enrolling in IMAGE. Macdonald says a number of companies that enrolled were facing substantial penalties when they did so.

Attorneys say employers have to make their own decisions about their business needs. “What we tell clients is, ‘use the system that’s right for you,’ ” says Loffredo.

Tags: Immigration

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