Coalition of Business Groups File Suit Over E-Verify for Contractors
A coalition of business groups led by the U.S. Chamber of Commerce's National Chamber Litigation Center filed suit on December 23, 2008, challenging the legality of an Executive Order and related federal procurement regulations ( http://edocket.access.gpo.gov/2008/pdf/E8-26904.pdf) requiring certain federal contractors and subcontractors to use E-Verify, the federal government's electronic employment eligibility verification program. The other plaintiffs in the suit are the Associated Builders and Contractors, Inc, the Society for Human Resources Management, the American Council on International Personnel and the HR Policy Association. The lawsuit names Homeland Security Secretary Michael Chertoff, Chairman of the Civilian Agency Acquisition Council Albert A. Matera and the United States as defendants. The U.S. Chamber of Commerce is the world's largest business federation representing more than 3 million businesses and organizations of every size, sector and region (Chamber of Commerce v Chertoff, DMd, No 8:08-cv-03444-AW).
E-Verify, administered by the Department of Homeland Security's (DHS) Citizenship and Immigration Services (USCIS) bureau in partnership with the Social Security Administration, is a web-based program that allows employers to verify that their employees are authorized to work in the United States.
"This massive expansion of E-Verify is not only bad policy, it's unlawful," said Robin Conrad, executive vice president of the National Chamber Litigation Center (NCLC), the Chamber's public policy law firm. "The Administration can't use an Executive Order to circumvent federal immigration and procurement laws. Federal law explicitly prohibits the secretary of Homeland Security from making E-Verify mandatory or from using it to re-authorize the existing workforce."
"The DHS intends to expand E-Verify on an unprecedented scale in a very short timeframe, and to impose liability on government contractors who are unable to comply," said Randy Johnson, vice president of Labor, Immigration and Employee Benefits at the U.S. Chamber. "Given the current economy, now is not the time to add more bureaucracy and billions of dollars in compliance costs to America's businesses."
Background. On June 6, 2008, President George W. Bush amended Executive Order (EO) 12989 (as amended) in order to direct all federal departments and agencies to require contractors, as a condition of each future federal contract, to agree to use an electronic employment eligibility verification system designated by the Secretary of Homeland Security to verify the employment eligibility of all persons hired during the contract term and for all persons performing work within the United States on the federal contract. The EO further instructs federal agencies not to do business with federal contractors who "knowingly employ unauthorized alien workers." While the EO did not specifically address whether subcontractors would also be required to enroll in E-Verify, it provided DHS with the authority to make whatever "rules, regulations, or orders" necessary to implement the EO. Further, it was not clear, according to the EO, when the new requirements on federal contractors would take effect.
At a June 9 press conference, Homeland Security Secretary Michael Chertoff designated E-Verify as the electronic employment eligibility verification system that all federal contractors must use. Three days later a proposed rulemaking implementing the EO was published in the Federal Register. The proposed rule sought to amend the Federal Acquisition Regulation (FAR) to require that certain federal contracts contain a clause requiring that contractors and subcontractors enroll in E-Verify to verify the employment eligibility of all newly hired employees and as well as all current employees assigned by the contractor to perform work in the United States under those contracts. The FAR is the principal set of rules in the Federal Acquisition Regulations System, which governs the "acquisition process," through which the federal government purchases goods and services.
Final rule. In a final rule published in the November 14 Federal Register, the Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council amended the FAR to require that certain federal contractors and subcontractors use the federal government's E-Verify program to verify that all new hires and existing employees directly performing work under federal contracts must be authorized to work in the United States. In particular, the final rule inserts a clause into prime federal contracts with a period of performance longer than 120 days and a value above $100,000 requiring the use of E-Verify. For subcontracts that flow from those prime contracts, the rule extends the E-Verify requirement to subcontracts for services or for construction with a value over $3,000. The final rule takes effect January 15, 2009.
Lawsuit. According to the Chamber's complaint, the Illegal Immigration Reform and Responsibility Act of 1996 (IIRIRA), which created the E-Verify program by Congress, states that "the Secretary of Homeland Security may not require any person or other entity to participate in the pilot program." The Act, which created the program, clarified that the program is voluntary, not mandatory. Therefore, pleads the complaint, the requirements imposed by the EO and final rule are "illegal and must be set aside" because they violate IIRIRA's express prohibition against requiring forced participation in the program. The complaint also alleges, among other things, that requiring reverification of existing employees also exceeds the IIRIRA's mandate. E-Verify is voluntary for private employers. Approximately 92,000 employers are participating in the program.
Reprinted with permission. © CCH
(Submitted Dec. 31, 2008)
<p>Coalition of Business Groups File Suit Over E Verify for Contractors A coalition of business groups led by the U.S. Chamber of Commerce's National Chamber Litigation Center filed suit on December 23, 2008, challenging the legality of an Executive Order</p>
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