The controversial federal E-Verify system may already be required for landscape contractors in your state. If not, it may be coming soon.

E-Verify is a federal, web-based electronic system that verifies the eligibility of an employee to work in the United States. Operated by the Department of Homeland Security (DHS), the system verifies the identity and employment eligibility of employees by electronically matching information provided by employees on the Form I-9 against records available to the Social Security Administration (SSA) and DHS.

States are mandating E-Verify use

The system is “voluntary” except that federal contractors must use the system. However, states are taking things into their own hands and mandating use of the system by all or certain subcategories of employers within their jurisdiction.

Pennsylvania latest state to pass E-Verify legislation

For example, the Pennsylvania General Assembly recently passed a bill by an overwhelming margin to require the use of the E-Verify system by all “construction industry employers.” Landscape contractors, according to the bill definitions, would be included. As of this writing, the governor has yet to sign the bill, but the margins by which it passed both houses appear veto-proof.

How E-Verify works

Generally, those employers who use E-Verify must follow this procedure after hiring an employee:

• Fill out the Form I-9 within three business days;
• Review a photo ID with a name matching the name provided on the Form I-9;
• Enter the employee’s name, date of birth, Social Security Number and, if a noncitizen-alien, identification number into E-Verify’s website within three business days;
• If the information fails to match information at SSA or DHS:
  • The employee will receive a Tentative Non-Confirmation (TNC).
  • The employee has eight business days to challenge the TNC by going to a DHS or SSA office.
  • If the employee fails to challenge or is not confirmed after a challenge, the employee and employer will each receive Final Non-Confirmation (FNC) notices.

If an employee receives an FNC, the employer must immediately terminate his or her employment.

Problems with E-Verify

E-Verify seems like a simple way to confirm the work authorization status of an employee. There are problems, however.

Errors are the biggest problem for employees with proper work authorization. These errors are produced as a result of bad data in the E-Verify system, errors created when employers mistype information into the system when verifying an employee and legal employee name changes due to marriage, divorce or other reasons.

For an employee who is a U.S. citizen or one with proper work authorization, these errors can be devastating. Getting the errors corrected can take weeks or months, during which time, the employee can be fired and unable to be employed elsewhere. Approximately 36 percent of TNC’s take more than eight days to resolve.

The CATO Institute estimates that in 2018, about 70,000 employees received erroneous TNC notices.

States mandating E-Verify use

Since 2008, 20 states have required the use of E-Verify by some or all employers in the state.  Those requiring all employers to use E-Verify are Arizona, Mississippi, Alabama and South Carolina. Those states requiring E-Verify use by employers over a certain size are North Carolina (25-plus employees), Georgia (10-plus employees), Utah (15-plus employees) and Tennessee (6-plus employees).

The remaining 12 states, Colorado, Florida, Idaho, Indiana, Louisiana, Michigan, Minnesota, Missouri, Oklahoma, Pennsylvania, Virginia and West Virginia, have required some limited use of E-Verify, usually involving those employers contracting with the state. See this synopsis of state E-Verify laws by the Society of Human Resource Managers.

If you are not already covered by E-Verify, states that are most likely to extend E-Verify use to landscape contractors are those that already have mandated limited use of the system.

In Pennsylvania, state contractors were already required to use the system. A push by building trade unions resulted in the bill currently on the governor’s desk extending E-Verify use to all construction industry employers, which includes landscape contractors.

So keep your eye on your state legislature. E-Verify seems to be picking up steam.