Article - Content Copyright Rinke Noonan

EMPLOYMENT NOTES FOR BUSINESS AND GOVERNMENT CLIENTS

February 2008

On January 7, 2008, Governor Tim Pawlenty signed Executive Order 08-01 requiring vendors with state contracts in excess of $50,000.00 to implement the federal electronic employment verifications system (E-Verify) for all newly hired employees in the United States who will perform work on behalf of the state of Minnesota.

The Order became effective on January 29, 2008, however, the Order is not effective as to existing contracts. It will become effective when the vendor signs new or extended contracts. Although there are a number of questions with regard to the application of the Executive Order, it does not appear that it will be become effective if contracts are amended but it will become effective it they are extended or renewed.

Vendors do not have to have the E-Verify fully implemented at the time that they sign new, renewed, or extended contracts. Vendors must simply certify that they are in the process of implementing E-Verify.

It is hoped that guidance will be issued to answer the outstanding questions. If you are a state contractor, depending upon when you anticipate any new, renewed, or extended contracts there is some argument for waiting to see what clarifying guidance may be issued.

The Order requires you and your sub-contractors to certify that you do not knowingly employ persons in violation of the United States Immigration laws. You and your sub-contractors will also be required to certify that you have implemented or are in the process of implementing the E-Verify program for all newly hired employees in the United States who will perform work on behalf of the State of Minnesota. Your contract(s) with the state may be terminated if you or the sub-contractors within your control have knowingly employed illegal workers in violation of the Federal Immigration laws.

I have attached a copy of the Immigration Status Certification that has been prepared by the state for execution in compliance with this Order. You register for E-Verify at https:\\www.vis-dhs.com\EmployerRegistration.

You will also need to amend any contracts with sub-contractors on state contracts to require them to also comply with the Order. If convenient you may want to wait to see the language that the State comes up with for contractors with regard to the use of E-Verify and then cut and paste the exact same language into your sub-contractor agreements.

Your certification will state that you will use the E-Verify system for employees who will be working on any State of Minnesota contracts. However, when you register for E-Verify you are required to register and agree to use the system for all employees at any given facility. Thus, although the Executive Order does not require you to use it for all employees, you will be required to use it for all employees at least for all employees that work at the same facility as any employee working on any State contracts.

To participate in e-verify, you must register and enter into a written agreement with the U.S. Department of Homeland Security, which includes the following obligations:

(1) A promise that every new employee’s social security number and immigration ID will be run through the program within three (3) days of hire.

(2) A promise not to use the system for pre-screening.

(3) Advance notice to employees that the employer participates in the program.

(4) Notation of a unique DHS generated PIN number on or with the I-9 of each new employee.

(5) In the event of a non-confirmation, a ten (10) day appeal process, during which the employer must allow the employee to continue to work. Enrollment for E-Verify is online, however, all staff who will be responsible for using the Federal database must also review a tutorial and pass an online test before they are allowed access to the database. There is no charge for the use of the database by participating employers to electronically verify the employment eligibility of newly hired employees, however, the agreement with the DHS may require some operational changes for implementation.

Homeland Security Secretary Michael Chertoff has announced that the federal government is also going to issue a proposed rule requiring federal contractors to use E-Verify in the coming weeks.

Employment Notes is a general discussion of legal issues and is not intended to be legal advice. Readers should seek the advice of competent legal counsel to review the specific facts and law regarding any given legal matter.