Comments submitted by the Society for Human Resource Management (SHRM) on a proposal that would require federal contractors to use the government’s electronic employment verification system question whether the Bush administration has the authority to impose such a mandate.
The proposed rules for an executive order mandating that all federal contractors confirm the eligibility of employees to work in the United States by using the E-Verify system appeared in the Federal Register on June 12, 2008, and had a 60-day public comment period. The HR Initiative for a Legal Workforce also submitted comments criticizing the proposed regulations.
The comments from SHRM and the HR Initiative question the authority of the Department of Homeland Security and other federal agencies to mandate that private employers use the federal electronic verification system—known as E-Verify.
According to federal immigration laws and regulations, employer enrollment and use of the E-Verify system is voluntary. E-Verify was known originally as the Basic Pilot program and was created as part of immigration reform enacted by Congress in 1996. The comments submitted by SHRM claim that the congressional intent for the verification system was that the pilot program remain voluntary.
“As a result, we do not believe that the government has the constitutional authority to mandate use of a voluntary program,” the SHRM comments concluded.
The intent of critical comments is to ensure that the federal government implements a verification system that is reliable and ensures workers are properly authorized to work in the United States, says Mike Aitken, director of government affairs for SHRM.
“SHRM and the HR Initiative coalition support verifying the work eligibility of job candidates; however, the proposed rules and current system clearly aren’t up to task,” Aitken said. “We need a reliable verification system that isn’t vulnerable to employee fraud and errors before the federal government requires that 200,000-plus federal contractors begin using the system.”
According to Aitken and the SHRM comments, the regulations as proposed do nothing to correct the shortcomings of the E-Verify system. The comments from SHRM and the HR Initiative coalition state that the verification system does not have a reliable or consistent method for recognizing fraudulent identity documents.
“E-Verify cannot detect many forms of document fraud or identity theft because it cannot confirm the identity of the individual presenting the documents,” the comments from SHRM stated. “The system can only verify that the identity information presented on the documents provided matches information in the Social Security and Department of Homeland Security databases.”
Another shortcoming outlined by the SHRM and HR Initiative is E-Verify’s reliance on the Social Security Administration’s (SSA) database. The database has an error rate of 41 percent, according to a report by the SSA’s Inspector General.
“These errors result in legally authorized individuals being improperly denied employment as well as nonwork authorized individuals being improperly verified by the system,” the SHRM comments stated. “We do not believe the proposed regulation is the best way to accomplish the objective of ensuring a legal workforce.”
Because the regulations fail to address the shortcomings and appear to go beyond the congressional intent for the federal verification program, SHRM says, it has requested that the Bush administration withdraw the proposed rules from consideration.
Bill Leonard is senior writer for SHRM Online