Sunshine (State) Surprise Introduces Latest E-Verify Mandate

[Editor’s Note: today’s blog is courtesy of Dawn Lurie and Kevin Lashus of Greenberg Traurig]

Governor Rick Scott wasted no time in making the state of Florida the fourteenth in the nation to have a mandatory E-Verify requirement.  Only minutes after being sworn in, the Governor signed his second executive order of the day-the first created the Office of Fiscal Accountability and Regulatory Reform to review regulations in the Sunshine State.  Scott had touted ideas about mandating E-Verify during his heated primary fight with former Attorney General Bill McCollum but the magnitude of the actual order caught many by surprise.

Executive Order No. 11-02 requires

1. All agencies under the direction of the Governor to verify the employment eligibility of all current and prospective agency employees through the U.S. Department of Homeland Security’s E-Verify system;

2. All agencies under the direction of the Governor to include, as a condition of all state contracts, an express requirement that contractors utilize the U.S. Department of Homeland Security’s E-Verify system to verify the employment eligibility of:

(a) All persons employed during the contract term by the contractor to perform employment duties within Florida; and

(b) All persons (including subcontractors) assigned by the contractor to perform work pursuant to the contract with the state agency.

3. Agencies not under the direction of the Governor are encouraged to verify the employment eligibility of their current and prospective employees utilizing the E-Verify system, and to require contractors to utilize the E-Verify system to verify the employment eligibility of their employees and subcontractors.

E-Verify is a web-based voluntary program that compares an employee’s Form I-9 information with the Social Security Administration and Department of Homeland Security (DHS) databases. E-Verify is considered a best practice by the government in terms of immigration compliance and has recently been upgraded to include a photo-matching component for U.S. passports and will soon debut a driver’s license pilot program.  In September of 2009, DHS implemented the long-awaited amendment to the Federal Acquisition Regulation (FAR) that requires certain federal contractors and their subcontractors to use E-Verify for new employees and all existing employees assigned to a federal contract. This is still the only instance where E-Verify can be used to verify a current workforce.

Scott’s Executive Order requiring re-verification of current and prospective employees transcends what is legally allowed under current federal law and is therefore likely to face an immediate court challenge.  Prospective employees? We bet those lawyers over at the Office of Special Counsel for Immigration-Related Unfair Employment Practices (the part of the Department of Justice that enforces the anti-discrimination provisions of the Immigration and Nationality Act) choked on their morning coffee while reading the terms of the Order. And the Verification division at USCIS may also have had a bad day.  Another type of E-Verify for them to deal with: normal, FAR and now Florida State? Who is going to pay for that development? How will it work? Are we back to the Arizona question again – can the state trump the federal government on immigration requirements?

In a twist of fate, Rhode Island’s Governor, Lincoln Chafee, rescinded Rhode Island Executive Order 08-01 which required the state as well as contractors and vendors doing business with Rhode Island to register and use E-Verify for all new hires. Chafee called the use of E-Verify a “divisive issue.”

Regardless of the future,  Florida’s state agencies now need to be aware of the E-Verify process and should—like all other employers participating in E-Verify—undergo comprehensive I-9 training, conducted by competent counsel, so that each of the designated E-Verify specialists may become experienced in the intricacies of employment eligibility verification. The verification process has become increasingly complex. Florida’s governor just complicated E-Verify even more. Any missteps by employees charged with verification compliance could be costly.  Employers must recognize that even the most well-intentioned individuals could attract both civil and criminal liability, not only upon themselves, but also upon their employers for failing to follow the verification process accurately and completely.