Businesses say they've been flummoxed by the federal government's shutdown of the E-Verify system, which is needed to confirm that new hires are legal citizens.
Georgia law requires employers with more than 10 workers enroll in E-Verify, and Tennessee grants immunity to employers if they fire an employee if E-Verify determines that the person isn't legally allowed to work.
But the loss of the E-Verify database has left many employers in a legal limbo, especially large corporations that are constantly replacing and hiring new employees. Though many states and employers depend on the service, the federal government didn't deem it essential.
"This is an unprecedented event," said Mary Danielson, director of corporate communications at Chattanooga-based BlueCross BlueShield of Tennessee. "So our first step was to seek the counsel of our legal team to ensure we can maintain compliance with federal and state laws."
BlueCross, like many other employers, hasn't halted private hiring. Instead, the insurer has resorted to carefully filling out standard I-9 forms, which require applicants to attest to their eligibility to work and provide documentation to that effect. Companies keep the form for three years, but aren't required to send them to regulators -- unlike the E-Verify system, which provides instant feedback on a worker's citizenship status.
As a result, employers are starting to see a backlog of workers who have filled out I-9 forms and are getting paid, but whose identify has yet to be confirmed through the federal database.
David Whitlock, an employment attorney at Chattanooga-based Miller and Martin, is advising clients that after scrutinizing employees' identification during the I-9 process, they should set those forms aside until the E-verify process is back online. They could then run them all through the system in one big batch, confirming that all new hires are legal workers.
This would run afoul of the law's language that discourages employers from running existing employees through the E-Verify system, but Whitlock thinks that the system's shutdown renders that rule moot.
"Typically, the memorandum says not to use it to verify existing employees, but I can't see anybody penalizing an employer for holding onto them and later running everybody through the system," he said.
The law allows employers just three days to put an applicant through E-Verify, after which companies are discouraged from prying into a worker's citizenship status. But since the federal government halted the automatic system that makes compliance possible, employers are likely to check workers status as soon as the system is turned back on, even if that day is a long time coming.
"Days that E-Verify is closed will not count towards the time period required to E-verify a worker's status," said Paul Richard, vice president of human resources for Shaw Industries. "Employers will be provided additional time once E-Verify reopens to submit any backlog of new hires for verification."
Dalton-based IVC US is also stockpiling I-9 forms, said Micah Riggle, director of human resources, and will figure out what to do once the government reopens.
"Once that happens, we will receive guidelines on how to proceed," Riggle said.
In the meantime, human resources managers are treading carefully as they walk the line between either turning away a possibly undocumented worker, or risk spending money to train and later fire someone who can't legally work in the U.S., Whitlock said.
"If you reject anybody and you're discriminating, you owe back pay and fines," Whitlock said. "Do the best possible job you can on the I-9 compliance and cross your fingers."
The risk of a discrimination lawsuit, however, shouldn't stop employers from using common sense, he added, such as asking point-blank about whether an employee has ever been through E-Verify before, and what the result was, he said.
For many employers, the most vexing aspect of the E-Verify shutdown is the fact that such an essential service was cut off in the first place. Whitlock blasted the federal government for blocking access to the automatic computerized system, which, since it uses almost no manpower, will save the federal government very little money, he said.
"It's an automatic system, it's not like somebody comes in every morning and turns it on," he said. "It doesn't take any people to run. That's the perplexing question about E-Verify, particularly since other pieces of the Department of Homeland Security are still up and running."
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