As an employer, chances are you may have heard of E-Verify, the electronic database to verify employment eligibility of workers. Employers are not currently required to use E-Verify, though many utilize it. The U.S. Department of Homeland Security reports that more than 700,000 employers use E-Verify at more than 1.9 million hiring sites.
The process is typically simple: E-Verify compares the information on a worker’s I-9 form with databases at the U.S. Department of Homeland Security (DHS), Social Security Administration (SSA), and/or U.S. Citizenship and Immigration Services (USCIS). This process should take place within three days of employment and completion of the I-9. If the employee provides a Form I-551 Permanent Resident Card, a Form I-766 Employment Authorization Document, or a US Passport or Passport Card, E-Verify will compare the employee’s photo ID with a photo displayed in E-Verify.
If the data lines up, you are golden! An “Employment Authorized” message will be sent. If the data doesn’t line up, a “Tentative Nonconfirmation” (TNC) message may arrive. Employers will then have to privately provide their employee a “Further Action Notice,” which explains the reason the TNC was issued and the worker’s right to contest it. This notice should be printed in English or Spanish with the printed document given to the worker.
If the worker wants to dispute the TNC, a “Referral Date Confirmation” can be pulled by the employer from E-Verify with all relevant information pertaining to the dispute (including points of contact, information and the time frame to handle the matter; typically eight federal government workdays) and provided to the employee. The employee then has ten business days after notice of the TNC to decide whether to contest or not.
If the employee chooses to contest, and the dispute is resolved successfully, the employee will then have the message on their account read “Employment Authorized.” If not, a Final Nonconfirmation (FNC) message is received. Based on this result or based on the employee who fails to notify the employer of the decision to contest within the ten business days, employer may terminate.
There can be shades of grey in this process which raise potential discrimination issues for the employer. For example, a TNC message does not mean that the employee is not eligible to work. The TNC message could be the result of input or typographical errors. To assume otherwise might be perceived as discrimination.
Red flags triggering discrimination issues include:
Using E-Verify to screen candidates by their race or ethnicity prior to employment or prior to completing their I-9.
Notifying employees of implementing E-Verify in only English when the workers it would affect speak Spanish.
Requesting further proof of work authorization from an employee following a TNC flag or prior to employment rather than following the prescribed E-Verify process.
Taking retaliatory measures against an employee who is flagged and proven to be not eligible to work.
These are just a few of many situations that can lead to potential discrimination issues. The solution? Be informed. Follow the E-Verify instructions carefully and consistently for all employees. Maintain complete records for each employee. Keep this information all in the same place. Post notifications in both English and Spanish. Do not rely on E-Verify to replace mandatory forms like I-9. And if you’re unsure about compliance, consider seeking assistance from third-party organizations that specialize in best practices.
If your company might want to participate in E-Verify, you can learn about enrolling at this link.