Monday, July 21, 2008

E-Verify: Use It or Lose Your Federal Contract

On June 9, 2008, an Executive Order was issued by President Bush requiring that certain federal contracts contain a clause committing the contractor and certain subcontractors to use E-verify as a condition of the federal contract. E-Verify is an Internet-based system that allows an employer to verify the identity and work eligibility of new employees for purposes of Form I-9. Both federal contractors and their subcontractors will be required to enroll in E-Verify within 30 days of being awarded the federal contractor and must continue use of E-Verify throughout the duration of the contract.

The rationale behind the Executive Order is that due to Immigration and Customs Enforcement’s (ICE) increased enforcement efforts, federal projects could be jeopardized, delayed or derailed if a federal contractor’s workforce is disrupted pursuant to a worksite raid. If federal contractors use E-Verify, the government reasons that the risk of these disruptions and delays are lessened. Notably, while E-Verify does not ordinarily offer any protection from worksite enforcement raids conducted by ICE, the federal government has indicated that federal contractors that use E-Verify are much less likely to face immigration enforcement actions.

Just a word about E-Verify… It’s free, it’s fast and it’s easy…it’s also riddled with erroneous information. E-Verify uses records from the Social Security Administration (SSA) and the Department of Homeland Security (DHS) to verify the employment authorization of individuals; however, the SSA itself estimates that approximately 17.8 million of its records contain discrepancies. Further, statistics also show that E-Verify has an error rate that is between ten to fifteen percent.

Nonetheless, federal contractors as well as certain subcontractors will be required to use E-Verify to verify new employees and all employees that will directly work under the federal contract, whether they are new employees or existing employees. Interestingly, DHS has acknowledged that this is a deviation from the rule normally applicable to employers—that an employer may not re-verify employees who have already properly completed Form I-9—and has seemed to indicate that this deviation is necessary for the stability and security of federal projects.

With respect to subcontractors’ compliance with the Executive Order, federal contractors are required to “flow down” the E-Verify contract clause to certain subcontracts. Subcontracts that exceed $3,000.00 and where the subcontractor will provide commercial or noncommercial services or construction in the U.S. must contain language requiring the subcontractor to use E-Verify. Clearly, the inclusion of this language in subcontracts could have exponential effects. The government’s aim is to protect the integrity of its “supply chain” but not burden federal contractors or subcontractors with the cost of compliance, thus the $3,000.00 threshold.

At this time, we are in the middle of a comment period that will end on August 11, 2008. After the comment period ends, final regulations will be issued by DHS regarding the implementation of the Executive Order. Expect the final regulations to include harsh consequences for a contractor’s failure to use E-Verify, including fines and possible debarment.

Minimum Wage change on July 24, 2008

A quick reminder: as part of the plan to increase the minimum wage to $7.25/hour in 2009, the next incremental increase in the federal minimum wage takes effect July 24, 2008. The new wage on that date will be $6.55 per hour.

The U.S. Department of Labor's poster issued in 2007 covers the minimum wage increases through this three-stage process. You do not need to update your poster if you have the Fair Labor Standards Act poster with a date of July 24, 2007. If your minimum wage poster predates 2007, or if it does not show the three stages of the minimum wage increases, you can download the current poster for free at

Friday, July 18, 2008

Traveler Fatigue?

Are you among the many travelers who have endured the long lines at airport security checkpoints just for the opportunity to take off your shoes and empty your pockets under the suspicious glare of a security agent? Did you lose your new bottle of shampoo because it was .5 ounces over the 3 ounce limit for liquids – or was it because it was not placed inside a clear 1 quart sealable plastic bag?

Like most people in this ‘new’ age of air travel, you have probably grown accustomed to – and weary of– the new security measures implemented to safeguard national security via air travel. If you travel overseas frequently, you have probably also experienced that slight moment of anxiety when you approach the Immigration Customs and Border Patrol officer upon returning to the U.S. hoping that your Passport and customs declaration form are in proper order. But have you considered what foreign travelers encounter when they try to visit the U.S.? For our friends who arrive as citizens from other countries, the experience can be even more apprehensive.

If you are simply curious about the process foreign travelers undergo when coming to our country, I suggest that you read on; however, if you have a business colleague, manager or family member from overseas that travels to the U.S., you need to be aware of changes that affect their future travel to the U.S. Beginning August 1, 2008, many of these foreign travelers will be required to engage in another level of security.

I am frequently asked if you need a visa to get into this country. The answer, of course, is complicated, but as a general matter, the answer is: “it depends”. If you have colleagues, friends or family from certain countries who travel to the U.S. and do not intend to stay longer than 90 days, they may enter under the ‘Visa Waiver Program’ (‘VWP’). Countries such as France, Germany, Japan and The United Kingdom (and others) have entered into Memoranda of Understanding with the U.S. Department of Homeland Security to permit their citizens to enter for a limited time without having to procure a visa beforehand.

Here’s how the system works: Under present policy, the foreign traveler simply purchases her airline ticket and the air carrier submits her name into an Advance Passenger Information System (‘APIS’) database to check for any criminal or terrorist ties before giving a Boarding Pass. Once a Visa-Waiver passenger is on the plane, she is given a ‘Form I-94W’ to complete and submit to the immigration officer at the U.S. airport, along with an unexpired passport from one of the ‘Visa-waiver’ countries. At that time, the visitor undertakes a biometrics exam (fingerprint scan, etc.) under a program called ‘US-VISIT’, before being allowed entry into the U.S.

Under the new interim final rule published by the Department of Homeland Security on June 10, 2008, any foreign visitor hoping to enter the U.S. under the Visa Waiver Program must first submit an online questionnaire at in advance of her travel.

Under this new program called the Electronic System for Travel Authorization, (‘ESTA’), the passenger will either be notified beforehand that authorization is ‘Granted’, that it is ‘Pending’ or that authorization is ‘Not Granted’. If she does not receive authorization, she will not be permitted to board the plane. In addition, the ESTA authorization will take the place of the I-94 card presently distributed in flight.

The good news is that there is no cost for the passenger to submit her authorization request and, once authorized, it is good for two years – or until her Passport expires – whichever first occurs. Thus, a Visa Waiver traveler will not have to submit a request each time she travels during the validity period, but she will need to update – online - any travel plans or itineraries that change for each trip.

The program becomes operational on August 1st, 2008 in English, and then it should be available in multiple languages sometime around October. It is expected to be fully implemented by January 12, 2009 – at which time every citizen from a Visa-Waiver country will be required to plan in advance of her travel to the U.S. by undergoing this preliminary screening process.

So, if you know someone who regularly comes to the U.S. on simply a passport and an I-94 card, make sure that you make them aware of these new travel regulations before making plans or appointments here in the U.S.

If you have any stories or suggestions to share about your international travel, we would love to hear them – and you can help us all make our travel a little easier.

Wednesday, July 16, 2008

1-2-3 Team IN

I love summer. Warm weather. Longer days. Vacation(s). The down side for me, though, is that this time of year, as with holidays, generally means that the work slows. More people are on vacation, meaning that they are less likely to do something warranting counseling (although you may be surprised how far-reaching some employee activity has become). The season is a relatively feel-good time of the year for most, meaning that complaints are few, or at least fewer than normal, and all is well.

Unfortunately, this summer is turning into a different animal. Companies that have been treading water during the economic downturn/slowdown/crisis/call-it-anything-but-a-recession-please are running out of energy. As the trickle-down effect of the economic situation continues to, well, trickle-down, we are beginning to receive calls that we haven't fielded in 8 or 9 years.

"Laura, we're looking at doing a mass lay-off in August. We need your help."

One of the thrilling facets of practicing in labor/employment for me is that I get to do mental gymnastics every day. Something new is always waiting. Facing the issues with my clients and carving out creative solutions or prompt methods of addressing the crisis give me the same rush that dealing with car salespeople gives my mom- and dad-in-law.

But this isn't the same. You can certainly look at reductions-in-force from the perspective that you're eliminating a few positions in order to save the greater number of positions. Fact is, that provides little or no consolation to the people who are holding those darkly-designated "few positions."

The maneuvers involved in preparing for and carrying out a reduction-in-force make solving a Rubik's Cube look simple. We encourage you to get a team together to map out the RIF, including internal and external members, to ensure that talents are put to the best use during this time. Do not try to solve this puzzle, or more importantly, bear this burden, alone.

1-2-3 Team OUT

Wednesday, July 2, 2008


Do you remember the commercials for TIMEX® watches? The watches would be exposed to horrendous conditions, yet they would continue to function.

Alas, two recent court cases handed down from the U.S. Supreme Court further illustrates that retaliation cases are the TIMEX® suits of employment litigation. In one case, Cracker Barrel unsuccessfully argued that a suit filed under Section 1981 (applicable to race claims and sometimes used when a race claim would otherwise be time-barred by Title VII) could include a retaliation component to it, even though Section 1981 did not explicitly protect against retaliation or authorize a cause of action based exclusively on retaliation.

The second case involved a claim under the Age Discrimination in Employment Act by a U.S. Postal Service employee. The ADEA's anti-retaliation provision is delineated for private employers but is silent as to public employers. The Court ruled that the prohibition on retaliation applied equally to public and private employers.

As the potential for discrimination claims continue to brew in our current economic state, it would be wise to refresh your managers and supervisors on best practices to prevent retaliation. We've often talked with our clients about the imposing nature of any suit that includes a claim for retaliation. Those are the suits that usually avoid summary judgment (meaning if you want to get a definitive ruling on the merits, you're going to trial) and can be bears to defend.

So, check your watches for the last time you held anti-retaliation training. If you haven't done it in a while, well, the clock might be ticking. . . .