E-Verify Proposal Highly Problematic

February 27, 2013

pic-everify-immigrationAs the immigration debate continues in Washington, D.C. and around the country, a draft proposal was recently leaked from the White House which includes provisions that are very problematic for small business. Included as part of the overall proposal is a requirement that businesses utilize the Department of Homeland Security’s E-Verify program. That portion of the proposal alone  is nearly 100 pages long, and is opposed by NSBA.

The draft does nothing to address the system’s high error rate.  The Administration would mandate all employers to use E-Verify within four years and would impose harsh penalties on those that do not or hire unauthorized workers.  Fines would go as high as $25,000 per unauthorized worker hired and employers could be imprisoned for up to ten years.  If the employer is deemed to have violated “labor or employment laws, including wage and hour, benefits or other employment standards, workplace health and safety or work- related injuries, labor relations, non-discrimination, or immigration” where a penalty “of at least $500, a judicial injunction, or other equitable relief, or any term of imprisonment has been imposed,” then the E-verify penalties would be increased to as much as $75,000 per unauthorized worker hired.  These penalties would be potentially ruinous for small firms.  The draft protects employers from liability for errors by the system but creates tort liability for “negligence or other misconduct on the part of the employer” in connection with the system.

To read Title X (relating to E-Verify) of the administration’s draft immigration bill, click here.

NSBA opposes mandatory E-Verify.  We are confident that Congress will regret making E-Verify mandatory for all new hires because of its adverse impact on small businesses, farmers and American citizens seeking work.  However, if Congress proceeds with mandatory E-Verify legislation, it is important that it contain at least five provisions.

First, the penalties imposed need to be reasonable.  The Legal Workforce Act reported out of the House Judiciary Committee last Congress would have imposed fines up to $25,000 per violation and criminal penalties for failing to use E-Verify as high as many states impose for second degree murder (up to 10 years in prison).  Certainly, employing someone should not rank in seriousness with taking another person’s life.  We believe the penalties being considered show a lack of perspective.

Second, there should be a specific, reasonable limit on how long those receiving a temporary non-confirmation (TNC) should have to wait for the resolution of database errors.  It currently takes about 100 days to resolve database errors but if the use of E-Verify is made mandatory for all new hires, the time to resolve errors is likely to increase dramatically.  During that time, small businesses must retain the person in question knowing that it is more likely than not they will ultimately be found to be unauthorized to work.  Moreover, many American citizens will find their fundamental right to earn a living endangered.  If either the employee has presented a U.S. passport or two months have elapsed since an appeal of a TNC and the I-9 process has been complied with, then the employer should be able to hire the person without penalty or discharge the person without being subjected to lawsuits and liability.

Third, there needs to be independent measurement and evaluation of accuracy of the system combined with serious consequences if the error rate remains too high.  Current error rates are so high that hundreds of thousands of American citizens each year will have to endure a bureaucratic nightmare simply to exercise their right to work.  If error rates remain high, then it is appropriate that the mandatory nature of the system be relaxed.  This could be accomplished by a phased-in implementation with large employers first and a statistically valid, independent accuracy evaluation being conducted before the next stage is authorized.  For example, employers with 500 or more employees could be required to use the system immediately.  If the error was less than 1 in 250, then the system would apply to employers of 250 or more.  If after a year, the error rate was less than 1 in 500, then the system would apply to employers of 100 or more.  And so on.  The final target should be at least an error rate of less than 1 in 1000.

Fourth, there should be a low- cost, administrative means for compensating employers and employees for actual costs incurred or wages lost because of E-Verify errors.

Fifth, employers should be protected from liability to employees when they comply with non-confirmations by E-Verify that ultimately prove to be erroneous.

Take Action

Now is the time to contact your Senator or Representative and tell them to oppose mandatory E-Verify or, at least, to adopt a reasonable E-Verify system containing NSBA’s five recommendations.