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E-Verify and Temp Staffing: Screen Candidates Properly

Posted on October 29, 2013 in Staffing

Prior to the Immigration Reform and Control Act of 1986, hiring workers who were not in the country legally presented little risk for employers. The biggest concern was losing workers through deportation. Once the law was passed, however, employers were required to verify the work authorization of every worker. Failing to do so could lead to penalties and criminal prosecution in some cases.

Things changed on many worksites somewhere between 1986 and the present day. Some employers and alien workers have exploited loopholes in the system. This has prompted more scrutiny of documents workers provide to prove they are eligible to work in the United States.

For most employers, the best option available today to ensure they are in compliance with federal law is E-Verify. Essentially, E-Verify is a government database operated by the Social Security Administration and the Department of Homeland Security used to cross-check work authorization documents. Temporary staffing agencies can benefit from using this database to screen candidates before sending them to work for clients.

How E-Verify Works

The E-Verify system is a free Internet-based resource that allows staffing agencies to determine candidates' eligibility to work in the United States. By using information that candidates report on an I-9 Employment Verification form, agencies can check information reported against millions of government records.

All employers must complete I-9 forms for candidates within three business days from the date employment begins. The original form is kept in candidate files even when the staffing agency participates in the E-Verify system. Using this system is simply an additional step of confirming information reported on the form matches government records. Since it is a standard practice that candidates complete employment paperwork before working for a client, staffing agencies can meet this requirement.

For most U.S. employers, E-Verify is voluntary and can only be used to determine new hire eligibility. Participating in the E-Verify system – even on a voluntary basis – gives clients reassurance that they will not face penalties for allowing undocumented individuals to work in their company.

Benefits of E-Verify for Temp Staffing Agencies

There has been intense scrutiny on whether the program is beneficial for regular employers and staffing agencies. While E-Verify may add more paperwork, using the system offers many potential benefits when screening candidates.

Access to a Free System

With the costs of recruitment skyrocketing as more employers look to staffing agencies for workers, any area of cost savings is worth it. Staffing agencies have a fast and easy way to screen out undocumented workers. The system verifies whether employment eligibility documents such as social security numbers are authentic.

Reduce Hiring Liability

Until there is a real fix to the immigration crisis, enforcement actions may intensify and lead to criminal prosecution of employers. Participating in the E-Verify program is an act of good faith that staffing agencies are not knowingly hiring individuals not authorized to work in the country. Furthermore, it gives staffing agencies a rebuttal position that can reduce their hiring liability if a legal issue arises.

Discourage Undocumented Workers

Advertising participation in the E-Verify program may discourage individuals who use fake documents to get hired. Some documents are hard to authenticate with the naked eye. Very few temporary staffing agencies have the time, money or energy to deal with the legal repercussions of hiring undocumented workers.

Level the Playing Field

Employers who engaged in illegal hiring held a competitive advantage over employers and staffing agencies that played by the rules. They could hire undocumented workers for pay lower than the minimum wage. With E-Verify, staffing agencies have more leverage with public support for equitable hiring practices. Additionally, using the E-Verify program in public relations materials and advertising applies pressure on competitors who may still chose to dodge the system.

Improve Business Relations

Staffing agencies can also benefit from improved business relations by participating in this program. This establishes a solid foundation of trust with clients, candidates and others in the business community who value integrity.

Mandatory Participation

Currently, use of e-verify is voluntary for employers and staffing firms. However, the U.S. Senate recently passed a bill that will require participation from all employers – permanent and temporary – within four years. Assuming that the House of Representatives will also pass the legislation, this and many other potential changes will greatly affect staffing agencies.

Known as the Border Security, Economic Opportunity and Immigration Modernization Act, it holds a number of potential changes: • More visas for skilled workers • New visa program for agricultural workers • Protection for foreign doctors who work in underserved areas • Mandatory participation in E-Verify

Mandatory participation for all employers must take effect within four years. Staffing agencies will need to examine documents such as a passport, social security card, driver's license or state ID and permanent resident card. They will need to swear under oath that the documents were examined and appear authentic. Agencies must authenticate documents without the law but on a voluntary basis.

The next step would be to consult with an identity authentication tool the U.S. Citizenship and Immigration Services provides to match documents with the DHS database. Records would be retained in employee files for three years after the employment start date or one year after employment termination, whichever is later.

Clearly, mandatory participation in the E-Verify program would increase the amount of paperwork for agencies already imposed. The increased workload could create a bottleneck with the need to process multiple hires within short periods of time.

Using E-Verify as a Federal Contractor

Another watchful area is using the e-verify system as a federal contractor that employs temporary workers. When the FAR E-Verify clause is included in a federal contract, both the contractor and staffing agency must use the E-Verify program. Staffing agencies are responsible for initiating E-Verify queries for temporary workers hired to work on a government contract.

Some federal contractors may decide to handle employment verification of temporary employees on their own. Typically, the agency will need to give the contractor access to I-9 forms for every worker. This is acceptable, but staffing agencies should still check the documents they receive from candidates. Doing so creates a failsafe way to ensure compliance with employment and immigration laws.

Receiving a No-Match Letter

When staffing agencies send W-2 forms to the SSA, names and social security numbers are verified against agency records. ICE verifies information provided on I-9 forms. When neither agency can verify information, the staffing agency receives a no-match letter.

Staffing agencies should avoid taking immediate action against an employee after receiving a no-match letter. The letter simply states that the information does not match and does not prove the employee is ineligible to work in the country. Reacting solely on the no-match letter may expose the staffing agency to an employment discrimination lawsuit.

However, staffing agencies that do not follow-up after receiving the letter could be in violation of federal law. Current regulations do not address procedures for employers to follow to protect themselves from legal repercussions. ICE has proposed safe harbor procedures that may guide staffing agencies through the process without penalty.

What Critics are Saying about E-Verify

Critics question fairness in the E-Verify program, claiming that certain people and industries are targeted. For example, the agriculture industry relies on migrant workers for labor-intensive crops. Without protection to incentivize employers to weed out undocumented workers, few are willing to participate in the program voluntarily. In addition, some fear that E-Verify is nothing more than a government database that will invade worker privacy rights. The government denies these claims.

Currently, 19 states require some form of an E-Verify system although all states with federal contracts are usually required to participate. Imperfection in the accuracy of information in the database helps to fuel critics' claims. Staffing agencies can be exposed to legal action for false non-confirmations.

Another criticism is that temporary staffing agencies shoulder the financial and administrative burdens of participating in the program. They are also responsible for training staff to use the system properly to screen candidates. Timely management of identity verifications are also the responsibility of staffing agencies. Many believe that SSA does not have the capacity to resolve issues quickly.

Conclusion

Whether voluntary or mandatory, staffing agencies have an obligation to clients and candidates to screen workers properly. Fostering a culture of compliance requires stressing the importance of following employment laws. Immigration agencies have increased enforcement efforts to target unscrupulous employers.

For some staffing agencies, doing the right thing could cause more harm than good. If E-Verify is used as part of the pre-employment screening process, they expose themselves to potential liability claims. For now, temporary staffing agencies can provide a printed copy of proof that they are enrolled in the E-Verify program to clients.

Maintaining current files and completing I-9 forms within the required timeframe may also give staffing agencies that hire temporary workers some security. Proper screening is necessary to make sure candidates have a legal right to work in the country. Hopefully, staffing agencies can avoid possible pitfalls until all of the glitches in the system are worked out.