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Labor and Employment

Executive Breakfast Meeting

Thursday, September 10, 2009Atlanta, Georgia

TABLE OF CONTENTS

TOPIC PAGE

Speaker Profiles p.3

Managing Medical Leaves of Absence Under the ADA and FMLA p.9

E-Verify and the Public Contractor - FAR p.43

Labor and Employment Attorney Contact Information p.79

Eileen M. G. ScofieldAlston & Bird LLPOne Atlantic Center1201 West Peachtree StreetAtlanta, GA 30309-3424 404-881-7375 [email protected]

Services ImmigrationLitigationInternational LitigationLabor & EmploymentCorporate & FinanceHomeland & Global SecurityCross-Border MattersGovernment ContractsHospitality

EducationUniversity of Georgia (J.D., 1985)

University of Hawaii(B.A., 1981)

Admitted to PracticeGeorgia

Eileen M. G. Scofield Counsel

Eileen Scofield has over 24 years of experience concentrating on immigration law and related legal matters for U.S. and foreign-based clients. She has successfully managed over 30 Department of Homeland Security (ICE) subpoenas, audits and investigations on behalf of various clients. She has also provided advice to clients on audit response, internal processing, follow-up and conclusion.

Eileen is listed in The Best Lawyers in America and Chambers USA: America’s Leading Lawyers for Business and in 2009 was named one of “Georgia’s Best Lawyers.” She is a member of the National Verification & Documentation Liaison Committee and chairperson of E-Verify National Liaison Committee. She received her J.D. in 1985 from the University of Georgia School of Law, where she was a Hatton Lovejoy Scholarship recipient. She received her B.A. in 1981 from the University of Hawaii.

Representative Experience

• Handled more than 10 workplace raids by the Department of Homeland Security. Provided immediate and hands-on advice during actual raid, as well as follow-up.

• Has managed over 30 Department of Homeland Security related subpoenas, audits and investigations.

• Managed more than 17 Social Security Administration audits; coordinated efforts of corporate record keeping, hiring procedures, verification programs, etc.

• Regularly establishes corporate policies and procedures in ongoingrestructuring and transactional situations, to both comply with the law and prepare for sensitive internal and external investigations related to hiring procedures, I-9 compliance, employment of foreign nationals, IRCA compliance and Office of Special Counsel national origin discrimination issues; address issues of philosophy, record keeping, documentation, compliance, documented use, penalties, enforcement.

• Undertook internal investigations on behalf of clients in an effort to assess compliance with immigration, employment and discrimination laws; address issues of personnel files, documentation retention policies, potential liability arising from investigations, privacy issues, workplace monitoring, and work with the company to develop new policies and procedures to avoid losses and/or damages.

• Regularly provides employment-related immigration training to human resource and legal staff of major companies.

• Provides outsourcing advice to clients in ways that protect the fluid movement of knowledge and key people.

• Liaises on a national and local level with the U.S. Department of Homeland Security (including the Bureau of Customs and Border Protection, the Bureau of Immigration and Customs Enforcements and the Bureau of Citizen Immigration Services), the U.S. Department of State and the U.S. Department of Labor.

• Member of select national American Immigration Lawyers Association committees and regular lecturer on behalf of the American Immigration Lawyers Association, as well as other organizations. Regular speaker at corporate and association-sponsored seminars.

• Advises on national and state level legislative advice and drafting expertise on legislation related to employers, employer compliance and employer sanction issues.

• Manages over 1000 immigration cases per year for over 120 companies regarding employees from over 40 countries.

• Provides investigation, assessment of facts and legal opinion regarding wrongful hire claims in state court.

• Provided assessment and written opinion in wrongful death case where decedent was allegedly an illegal alien. In light of damages issues, and allegations of inflammatory evidence, statements were used in conjunction with Motion in Limine.

• Worked with defense counsel in federal investigation by U.S.attorney of lawyer allegedly abusing non-immigrant visa options and processes, and possible RICO claim.

• Provided expert opinion of immigration issues, options, law and restrictions on behalf of child protection services seeking to keep minor as a ward of the state so that medical treatment can proceed in the U.S. and not return to U.S. citizen parents in Africa.

Presentations

• Invited Speaker, American Immigration Lawyers Association Annual Conference, Las Vegas, NV, June 3-5.

• Invited Speaker, Gulfcoast Symposium, "Electronic I-9s and E-Verify: Improving Efficiency and Accuracy with Software," Houston, Texas, May 21, 2009.

• Invited Speaker, Alston & Bird Government Contracts Seminar, "Grand or Faustian Bargain? New Opportunities and Perils for State and Federal Contractors Under the New Administration," Los Angeles, California, April 16, 2009.

• Invited Speaker, Kansas Bar Association, “I-9 Compliance,”Manhattan, Kansas, September 12, 2008.

• Invited Speaker, American Agricultural Law Update, “Establishing A Secure I-9 Compliance Program,” Macon, Georgia, September 26, 2008.

• Invited Speaker, The Legalities of Doing Business in China, “Lessons Learned and Cautionary Advice,” Atlanta, Georgia, August 19, 2008.

• Invited Speaker, American Immigration Lawyers Association 2008 Leadership Institute Program, “Effective Government Liaison,”August 11-12, 2008.

• Lecturer, Government Contracts Seminar, Alston & Bird, July 17, 2008.

• Invited Speaker, American Immigration Lawyers Association Annual Conference, Vancouver British Columbia, Canada, “E-Verify Program,” June 2008.

• American Immigration Lawyers Association National Telephone Conference, “E-Verify Program,” May 7, 2008.

• Invited Speaker, American Immigration Lawyers Association and Florida Bar Association CLE, “Coping with Enhanced Employer Enforcement,” Miami Beach, Florida, Thursday February 7, 2008.

• Invited Speaker, Progressive Business Audio Conference, “The New & Improved I-9 and How to Use it,” January 9, 2008.

• Invited Speaker, American Immigration Lawyers Association, “Worksite Enforcement CLE Conference,” Scottsdale, Arizona, November 30, 2007 through December 1, 2007.

• Invited Speaker, Institute of Continuing Legal Education in Georgia, “Immigration Law,” Atlanta, GA, November 29, 2007.

• Invited Speaker, New Jersey Farm Bureau 89th Annual Meeting “Immigration Issues,” Princeton, New Jersey, November 15-16, 2007.

• SHRM-Atlanta's 17th Annual Southeast HR Conference “Construct Your Strategic HR Toolbox,” Atlanta, GA, October 15-16, 2007.

• Invited Speaker, Lorman Educational Services “Immigration Enforcement: A New Era for Employer Liability,” Atlanta, GA,

October 11, 2007.

• Invited Speaker, American Farm Bureau National Association, “SSA Mismatch Letters, Enforcement and the Future: Legal Challenges for Agriculture,” Washington, DC, September, 11, 2007.

• Invited Speaker, Young Harris College, “U.S. Immigration, Politics, Law and Issues 2007,” Young Harris, GA, July 13, 2007.

• Invited Speaker, American Immigration Lawyers Association, “The New Look of Employer Verification,” American Immigration Lawyers Association, Annual National Conference, Orlando, FL, June 13-16, 2007.

• “I-9 Compliance,” Georgia Golf Course Owners Association (GGCOA), Legal Day, Alpharetta, GA, May 9, 2007.

• “The I-9 Form: What You Need to Know,” Employment Law Seminar, National Constitution Center, February 2007.

• “The New World of Enforcement and Employer Sanctions,” American Immigration Lawyers Association, January 2007.

• Presentation to U.S. House of Representatives Committee Staff on Homeland Security regarding Employer Sanctions and Swift Raids, December 2006.

• “Social Security Administration No-Match Letters, Then and Now,” American Immigration Lawyers Association, November 2006.

• American Immigration Lawyers Association, Mid-South Chapter Annual Conference, New Orleans, Louisiana, November 2006.

• “Immigration Enforcement: A New Era For Employer Liability,” Lorman Education Services, Atlanta, GA, October 2006.

• “I-9 Compliance: Minimizing Liability for Undocumented Workers,” National Constitution Center, July 2006.

• “Update on Employment Verification System--No More I-9s?” American Immigration Lawyers Association, Annual Conference, San Antonio, Texas, June 2006.

• “I-9 Compliance -- Do Employers Still Need to Walk a Tightrope?” American Immigration Lawyers Association, June 2006.

• “Recent Developments in Immigration Law affecting the Indian Community,” Georgia Indo American Chamber of Commerce Immigration Seminar, February 2005; February 2006.

• “Throughout the Virtual Border: Impact of Security measures on Business and Travel,” American Immigration Lawyers Association, Chicago, IL, October 2004.

• “I-9 Compliance/Social Security Administration Mismatch Letters: The Nuts and Bolts of Business Immigration Law,” American Immigration Lawyers Association, Atlanta Chapter, Atlanta Marriott Gwinnett Place, May 2004.

• “Immigration Compliance: Employment Eligibility Verification Form (I-9 Form) in Georgia,” Lorman Educational Services, Atlanta, GA, April 2004.

• “The Wal-Mart Scenario: How to Comply with Employment and Related Laws,” Alston & Bird, Atlanta, December 2003.

• “The Basics of Immigration Law Practice Conference,” American Immigration Lawyers Association, Washington, D.C., October 2003.

• “Business and Immigration – The Processing and the Issues,” Florida Regional Human Resources Conference, The Ritz-Carlton Hotel Company, Naples, FL, March 2003.

• “Business Immigration Visas – They Keep on Ticking,” Center for International Legal Studies, Steamboat Springs, Colorado, February 2003.

Publications

• “The Nuts and Bolts of Public Contracting: Managing Risk and Maximizing Reward,” Alston & Bird Government Contracts Seminar, July 17, 2008. (Co-Author)

• TAPPI (Technical Association of the Pulp and Paper Industry), “Do You Take Visa?” Paper 360, May 2008.

• “The ICE-Man Cometh: Crackdown of Immigration in the Meat Processing Industry,” American Bar Association Homeland Security and National Defense Newsletter, Vol. 1, No. 1, Fall 2007.

Alicia P. StarkmanAlston & Bird LLPOne Atlantic Center1201 West Peachtree StreetAtlanta, GA 30309-3424 [email protected]

Services LitigationLabor & Employment

EducationDuke University(J.D., 2003)

University of Pennsylvania(B.A., 1998)

Admitted to Practice Georgia

Alicia P. StarkmanAssociate

Alicia Starkman is an associate in Alston & Bird’s Labor & Employment Group. She represents management in all aspects of employment law and concentrates her practice on employment litigation and counseling. Her litigation experience includes defending employers against a range of claims including claims of gender, race, age, national origin and disability discrimination under Title VII and the ADA, whistleblower and retaliation claims under Sarbanes-Oxley and Title VII, retaliation claims under the Family and Medical Leave Act, wage claims under the Equal Pay Act and the Fair Labor Standards Act, and various claims based on common law tort and contract theories. Her experience also includes defense of collective actions under the FLSA and the ADEA.

In addition to litigation, Alicia’s practice includes counseling management clients on compliance with federal and state employment laws and drafting employee handbooks, employment agreements and restrictive covenants.

Alicia earned her J.D., with honors, in 2003 from Duke University School of Law and is a member of Order of the Coif. At Duke, Alicia was the co-recipient of the Class of 2003 Public Service Award and received the award for Outstanding Achievement in family law. Alicia received her B.A., summa cum laude, in history from the University of Pennsylvani in 1998. She is a member of the State Bar of Georgia and the Atlanta Bar Association. She is admitted to practice in all of the state courts in Georgia, as well as the United States District Court for the Northern District of Georgia and the United States Court of Appeals for the Eleventh Circuit.

Representative Experience

• Received favorable arbitration award in breach of contract action following a 10-day hearing.

• Obtained summary judgment in Sarbanes-Oxley and Title VII retaliation case brought by former employee.

• Represented a worldwide transportation and logistics company in defending numerous employment discrimination lawsuits and administrative charges.

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Managing Medical Leaves of AbsenceUnder the ADA and FMLAManaging Medical Leaves of AbsenceUnder the ADA and FMLA

Alicia P. Starkman

Program OutlineProgram Outline

• Statutory Overview

• Hypothetical Scenarios

• Practical Pointers

• Question & Answer

2

Legal LandscapeLegal Landscape

• Family and Medical Leave Act

- Revised regulations in effect January 16, 2009

- State medical leave laws

• Americans with Disabilities Act

- ADAAA in effect January 1, 2009

- Regulations to be published soon; likely retroactive

• Workers’ Compensation Laws

- Creature of state law

- Rules vary from state to state

Family and Medical Leave ActFamily and Medical Leave Act

• Covered Employer:

- Public employers

- Private employers with 50 or more employees

• Eligible Employee:

- Worked at least 12 months

- Worked at least 1250 hours in previous 12 months

- 50 or more employees within a 75-mile radius

- Eligibility may be met during leave

3


• Reasons for Leave:- Because of employee’s own serious health condition that

makes employee unable to perform essential job functions

- Unable to work at all

- Unable to perform any one of the essential job functions withinthe meaning of the ADA

- Care for immediate family member with a serious healthcondition

- Birth, adoption, foster care placement of a child

- Qualifying exigency arising out of immediate family member’scall to active duty

- Care for ill or injured servicemember


• Leave For Serious Health Condition:

- Up to 12 weeks in 12-month period

- Can be intermittent/reduced schedule or singleblock of time

- Leave is unpaid; paid leave can be substituted

- Health benefit continuation during leave

- Reinstatement to same or equivalent position uponreturn from leave

4


• Serious Health Condition: illness, injury, impairment, or physical ormental condition that requires inpatient care or continuing treatment bya health care provider- Inpatient care- Continuing treatment

- Absence plus treatment: period of incapacity of more than 3 full consecutivecalendar days that also involves either treatment by health care provider 2 or moretimes within 30 days of the first day of incapacity; or treatment by health careprovider once plus a regimen of continuing care

- Pregnancy: period of incapacity due to pregnancy or for prenatal care- Chronic conditions: period of incapacity due to any condition that continues over

extended period of time, requires at least twice-yearly visits to health care provider,and may cause episodic incapacity (ex: epilepsy, diabetes, asthma)

- Permanent/long-term condition: period of incapacity which is permanent or long-term due to requiring supervision of health care provider (ex: Alzheimer's, stroke,terminal stages of disease)

- Multiple treatments/Non-chronic conditions: period of incapacity to receive/recoverfrom multiple treatments for restorative surgery or for condition that would result inmore than three consecutive full calendar day absences without medicalintervention (ex: chemotherapy for cancer, physical therapy for arthritis, dialysis forkidney disease)

• Certification:- Form WH-380-E- No additional information unless for receipt of benefits under paid leave

policy, disability plan, workers compensation


• Employer Notice Requirements:- New FMLA general notice poster

- Form WH-1420

- FMLA policy in handbook (or distribute poster)- Cover all elements of poster- Plus: calculation of 12-month period, leave request procedures,

substitution of paid leave, call-in procedures, medical certification andfitness-for-duty requirements

- Written notice of eligibility and rights & responsibilities- Form WH-381- Within 5 business days of learning of need for FMLA leave- Notice of need for certification (15 days) and consequences for failure to

submit

- Written notice of deficiencies in certification and opportunity to cure- Written designation notice

- Form WH-382- Within 5 business days of obtaining information to determine whether

leave qualifies- If fitness-for-duty certification will be required, employee must be

informed in designation notice and given essential job functions

5


• Employee Notice Requirements:- Notice sufficient to suggest that leave is needed for a

potentially qualifying reason

- “I am sick” / “I have a headache” may be insufficient

- Compliance with usual and customary requirements forrequesting leave, absent unusual circumstances

- Written notice

- Notice to specific individual

- If additional leave for previously certified condition, can requirereference to FMLA

- 30 days notice of foreseeable leave

- Notice of need for unforeseeable leave must be given assoon as practicable under the circumstances

Americans with Disabilities ActAmericans with Disabilities Act

• Covered Employer:

- Public employers

- Private employers with 15 or more employees

• Scope of Coverage:

- Non-discrimination

- Reasonable accommodation

- Medical Examinations/Inquiries

- Confidentiality

6


• Qualified Individual with a Disability:

- Disability: a physical or mental impairment thatsubstantially limits one or more major life activities

- Qualified: possesses requisite education, skills,licenses, and experience for the position; and canperform essential functions of position with orwithout reasonable accommodation


• Impairment: A physical or mental condition ordisorder that affects the body

- NOT physical characteristics (height, hair color)

- NOT personality traits (short-temper, poorjudgment, irresponsibility, irritability)

- NOT pregnancy- But complications from pregnancy could be

7


• Substantially Limits:- Precise definition currently unclear- ADAAA directed EEOC to revise regulations that defined

term as “significantly restricted”- Proposed regulations apparently include no definition- Former regulation required examination of “condition,

manner, and duration” of performance of major life activitycompared to average person

- Proposed regulations apparently eliminate this analytical tool

- Pre-ADAAA Supreme Court held that impairment’s impactmust be “permanent or long-term”

- Majority interpretation: at least several months- ADAAA does not specify length of time


• Major Life Activities:

- ADAAA includes non-exclusive list: caring foroneself, performing manual tasks, seeing, hearing,eating, sleeping, walking, standing, lifting, bending,speaking, breathing, learning, reading,concentrating, thinking, communicating, working

- Includes major bodily functions such as functionsof the immune system, normal cell growth,digestive, bowel, bladder, neurological, brain,respiratory, circulatory, endocrine and reproductivefunctions

8


• Post-ADAAA:

- Less focus on whether employee is “disabled”

- More focus on employer’s efforts to providereasonable accommodations


• Reasonable Accommodation: removal ofworkplace barriers to enable qualifiedindividual with a disability to have equalemployment opportunities

- Modifying access to facilities

- Modifying equipment

- Job restructuring

- Reassignment to vacant position

- Modifying work schedule

- Leave of absence

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• Undue Hardship:

- Employer must provide accommodation unlesswould cause undue hardship

- Significant difficulty or expense

- Factors:- Nature and net cost

- Financial resources, number of employees, effect onexpenses and resources, impact on operation

- May consider impact of initial 12-weeks of FMLA absence

- High burden for employer

- Case-by-case assessment


• Unpaid Leave of Absence Can BeReasonable Accommodation:

- EEOC’s position

- Majority position

- Selection among multiple accommodation options- Unlike FMLA, time off does not have to be only option

- May offer other accommodation if it will enable employeeto perform essential functions of job

- Examples: assistive device, opportunity to work reducedhours, temporary reassignment

10


• How Much Leave?

- “Reasonableness” varies case-by-case

- Must enable employee to perform essential jobfunctions in the near future- < 6 months presumptively reasonable

- > 12 months presumptively unreasonable

- Indefinite leave request not reasonable

- No leave if undue hardship on employer


• Intermittent / Reduced-Schedule Leave:

- May be a reasonable accommodation

- Usually not reasonable to change full-time job intopart-time job

- Predictable, regular attendance usually essentialjob function

- EEOC: If reduced hours create undue hardship,must consider reassignment to vacant position

11


• Employee Notice Requirements:

- Employee must request accommodation

- Possible exception when employer knows:- that employee has a disability,

- is experiencing workplace problems because of disability,and

- disability prevents employee from requestingaccommodation

- EEOC: employee request for time off for medicalreasons should be considered request foraccommodation


• Medical Certification:- Can require employee to verify that claimed

disability exists and accommodation is warrantedwhen either is not obvious

- May gather medical information to:- Determine the existence of disability

- Assess potential accommodations

- Analyze direct threat

- Determine compliance with applicable law (ex: DOTregulations, state laws)

- No limitations on follow-up with healthcare provider

- Employee must cooperate

12


• Benefit Continuation:

- No requirement, but beware of non-discrimination

• Reinstatement:

- Reinstatement to same position unless holdingposition open creates undue hardship

- If hardship, must give employee vacant position

Hypothetical 1Hypothetical 1

• Dwight, a salesman at Dunder Mifflin PaperCompany, contracts a viral infection working on hisfarm and misses four weeks of work. The high feverassociated with the infection causes damage to hisinner ear, leaving him subject to unpredictable attacksof debilitating dizziness. Currently, these attacksoccur several times per week and last up to 8 hours.The frequency and severity of the attacks is expectedto diminish over time. Dwight requests that DunderMifflin accommodate his disability by allowing him towork a flexible, open-ended schedule. How shouldDunder Mifflin respond?

13


• FMLA:– Coverage analysis

– Eligible employee– Two separate serious health conditions

– Notice– Medical certification– Right to intermittent leave if medically necessary

• ADA:– Coverage analysis

– Disability– Additional medical documentation

– Qualified individual– Cannot report to work regularly, perform tasks predictably– Regular attendance may be essential job function

– Undue hardship– Other effective accommodation– Disparate treatment


• After his request for a week of vacation is denied,Ryan, an administrative employee at Dunder MifflinPaper Company, calls in sick for five days straight,saying only that he is “not feeling well.” Ryan has anextensive history of absenteeism problems. Prior tothis absence, Ryan used all of his available paid leaveand was warned that any further absences wouldresult in his termination under the Dunder Mifflin no-fault attendance policy, which is consistently andstrictly enforced. Ryan’s supervisor, Michael, stronglysuspects that Ryan is away on the vacation that hepreviously requested. Can Dunder Mifflin terminateRyan?

14


• ADA:- No duty to accommodate unknown disabilities

- Should not seek additional information

• FMLA:- Seek additional information to determine whether absence

may qualify

- “Not feeling well” gives Dunder Mifflin reason to inquirefurther

- Go through FMLA process

- Safe to terminate if Ryan does not cooperate or does notestablish serious health condition

- Can gather evidence of abuse of FMLA leave


• Kevin, an accountant at Dunder Mifflin, wasgranted 12 weeks of FMLA leave after beingdiagnosed with major depression. Two weeksbefore the end of his leave, Kevin contactsHR and requests an additional 3 months ofleave. In support of his request, Kevinsubmits a doctor’s note that states that Kevinis unable to work at all, but should be able toreturn to work in 3 to 6 months. Can DunderMifflin deny Kevin the additional leave?

15


• FMLA:

- 12 weeks is maximum, unless new year underpolicy (or lack of policy and new year under somecalculation)

- If employee cannot perform essential functions ofjob at end of leave, no reinstatement obligation

• ADA:

- Disability

- Undue Hardship

Practical PointersPractical Pointers

• Develop procedures to aid in administration of leave

• Clear policies distributed to all employees

• Central point of contact for all leaves of absence

• Provide annual training for HR and all supervisors

• Analyze each situation separately, on its own facts

• Spend time on analysis up front

• Require and rely on medical documentation

• Document all absences when they occur

• Maintain clear communication with employees aboutleave and efforts to accommodate

• Consult with legal counsel

1

Labor & EmploymentExecutive Breakfast MeetingLabor & EmploymentExecutive Breakfast Meeting

Thursday, September 10, 2009

Atlanta, Georgia

E-Verify and the Public Contractor- FAR -

September 2009

E-Verify and the Public Contractor- FAR -

September 2009

Eileen M. G. Scofield

2

What is E-Verify?What is E-Verify?

Goal: of the Federal Government:reliable work force, identify data tools

Political background, SSA, 9/11 plusillegal immigration

Issues 100,000 employers to date

Want more employers to sign up

Partnership between DHS and SSA


Take data from I-9 form andsubmit to E-Verify

Data will runthru SSA, DHS,DS

3


•Employment Authorized

•Tentative Non-Confirmation

•Final Non-Confirmation

(DHS No-Show)

•Review & Update EmployeeData & Resubmit

•DHS Case in Continuance

5

Guidance SourcesGuidance Sources

Form I-9, Employment Eligibility Verificationhttp://www.uscis.gov/files/form/i-9.pdf

Form M-274, Handbook for Employershttp://www.uscis.gov/files/nativedocuments/m-274pdf

Form I-9 call DHS at (888) 464-4218.

E-Verify call DHS at (888) 464-4218 or visit the

E-Verify Website: www.dhs.gov/E-Verify

Disclaimer:

Immigration law can be complex and it is impossible to describe everyaspect of the process.

Who must use E-Verify?Who must use E-Verify?

Federal Contracts

June 6, 2008 Executive Order

June 12, 2008 Federal Register

September 8, 2009 - Effective

425,000 = 8%

6

Federal Contractors and E-Verify –Federal Contractors and E-Verify –

1. The Contract – New or AmendedFederal Acquisition Regulation (FAR) Amendment

2. Contractor must execute MOU or Amend FAR MOU

3. New FAR training/registration

4. Contractor must comply

5. Contractor must require sub-contractors to comply

Enrolling Work Force – Who?Enrolling Work Force – Who?

Existing Employees– Employees assigned to the contract; or– All existing employees, regardless of whether they are assigned to thecontract (must notify DHS of this option)

New Hire – All new hires

Exempt Employees

– Holds an active security clearance of confidential, secret or top secret;

– He/she has gone through a background investigation and hadcredentials issued pursuant to the Homeland Security PresidentialDirective – 12.

7

Enrolling the Work Force – When?Enrolling the Work Force – When?

The work force

1-3 days – e-verify all new hires

1-30 days – within 30 days of contract award E-verifycurrent employees assigned to contract

31 + days - by 3rd day, E-verify all new employees andnewly assigned employees

When do I begin to verify myemployees through E-Verify?When do I begin to verify myemployees through E-Verify?

If your company is not currently enrolled in E-Verify:

Any employee assigned to new contract must beverified within 90 days from enrollment; or 30 daysfrom the employee’s assignment to the contract,whichever is later

90/30

Within 90 days of enrollment, you must use E-Verify for all new hires

90

Within 30 days you must enroll in the E-Verifyprogram (www.uscis.gov) or contact ICS to serve asyour designated agent

30

Required ActionCalendar Days Since ContractAward

8

When do I begin to verifymy employees through E-Verify? (cont.)


If your company is enrolled in E-Verify, but less than 90days since contract awarded:

Any employee assigned to new contract must beverified within 90 days from enrollment; or 30days from the employee’s assignment to thecontract, whichever is later

90/30

Within 90 days of enrollment, E-Verify must beused for all new hires

90




If your company has been enrolled in E-Verify for morethan 90 days from contract awarded:

In accordance with E-Verify requirements, allnew employees should already be run through E-Verify

NOW

Any employee assigned to new contract must beverified within 90 days from enrollment; or 30days from the employee’s assignment to thecontract, whichever is later

90/30


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Contract ExceptionsContract Exceptions

Work not in the U.S.

Contract for less than threshold

COTS (commercially availableoff the shelf item)

Exempt Employees

Sub-contractsSub-contracts

All sub-contracts in excess of $3,000

Contractor needs to include contract clause for sub-contractors

Notification

Confirmation – a plan to assure compliance

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Term of E-VerifyTerm of E-Verify

Must use E-Verify for term of contract

Concerns – CostsConcerns – Costs

Cost of compliance likely outweigh the benefits?

Costs

10 - $419

50 - $1,168

100 - $2,102

500 - $8,964

12-16 minutes to process

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Concerns - AdministrativeConcerns - Administrative

In House – central/local

Designated Agents

Proper Execution and Follow-up

Concerns - AdministrativeConcerns - Administrative

Existing Employees

Need to re-everify with new I-9

(citz/nat’l)

(valid documentation today)

Need to notify employees

Need to manage process

12

Concerns - WorkersConcerns - Workers

Loss of workers

Lawsuits by workers

Concerns - SubcontractorConcerns - Subcontractor

Amend contracts and flow-down

13

Concerns – Data SystemsConcerns – Data Systems

Information Sharing

USCIS mandatory usage

U.S. Department of Justice Office of Special Counsel discrimination claims

ICE Monitoring Usage

What to do nowWhat to do now

Read MOU

Current ability to select sites

Look at Sub-contractors and contracts

Strengthen I-9/E-Verify policy & procedures

Strengthen training on I-9/E-Verify systems

Strengthen audits of I-9/E-Verify processes

Watch for publication date

Watch for new contract terms

14

Fines for keeping FWC employees

$500, $1000 per worker

Photo tool

Reliability – 92%, 99%

Who must use E-Verify?Who must use E-Verify?

State Contracts

M-574A Supplemental Guide for Federal Contractors 09/08/2009 1

TABLE OF CONTENTS

1.0 REGULATIONS AFFECTING FEDERAL CONTRACTORS .............................................. 4 1.1 BACKGROUND .................................................................................................................... 4 1.1.1 EXECUTIVE ORDER 12989 ................................................................................................ 4 1.1.2 THE FEDERAL CONTRACTOR RULE................................................................................ 4 1.1.3 ABOUT E-VERIFY................................................................................................................ 4 1.2 HOW TO DETERMINE WHETHER YOU ARE AFFECTED BY THE RULE ....................... 5 2.0 INSTRUCTIONS FOR VERIFYING NEW AND EXISTING EMPLOYEES ON FORMS I-9 5 2.1 VERIFYING NEW EMPLOYEES ......................................................................................... 5 2.2 VERIFYING EXISTING EMPLOYEES ................................................................................. 6 2.2.1 INSTRUCTIONS FOR OPTION II: COMPLETE NEW FORM I-9 WHEN NECESSARY AND UPDATE EXISTING FORMS I-9 WHEN ALLOWABLE ........................................................ 8 3.0 E-VERIFY ENROLLMENT AND PARTICIPATION AS A FEDERAL CONTRACTOR ...... 9 3.1 OVERVIEW OF E-VERIFY ENROLLMENT AND USE........................................................ 9 3.2 DEADLINES FOR ENROLLMENT AND VERIFYING EMPLOYEES ................................10 3.3 EMPLOYEES WHO ARE EXEMPT FROM E-VERIFY ......................................................11 3.4 GOING FORWARD ............................................................................................................12 4.0 ENROLLMENT INSTRUCTIONS FOR Certain ORGANIZATIONS THAT QUALIFY FOR EXCEPTIONS ..............................................................................................................................14 4.1 YOUR OPTIONS ................................................................................................................14 4.2 VERIFYING YOUR ENTIRE WORKFORCE......................................................................14 4.3 INITIAL ENROLLMENT IN E-VERIFY ...............................................................................15 4.4 INSTRUCTIONS FOR UPDATING YOUR COMPANY PROFILE FOR EXISTING E-

VERIFY PARTICIPANTS ...................................................................................................15 5.0 QUALIFYING CONTRACTS, EXEMPTIONS AND EXCEPTIONS FOR E-VERIFY ........16 5.2 HOW TO DETERMINE WHETHER YOUR FEDERAL CONTRACT QUALIFIES .............16 5.3 IDIQ CONTRACTS .............................................................................................................17 5.4 CONTRACTS EXEMPT FROM THE FEDERAL CONTRACTOR RULE...........................17 5.5 SPECIAL REQUIREMENTS FOR CERTAIN ORGANIZATIONS......................................17 6.0 SUBCONTRACTORS, INDEPENDENT CONTRACTORS AND AFFILIATES ................18 6.1 SUBCONTRACTORS ........................................................................................................18 6.2 PRIME CONTRACTOR AND SUBCONTRACTOR OBLIGATIONS..................................18 6.4 SUBSIDIARIES AND AFFILIATES ....................................................................................19 7.0 ENROLLMENT INSTRUCTIONS FOR CONTRACTORS NOT YET ENROLLED IN E-VERIFY.........................................................................................................................................19 7.1 OPTIONS FOR VERIFYING EXISTING EMPLOYEES .....................................................19 7.2 FEDERAL CONTRACTOR ENROLLMENT STEPS ..........................................................20

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8.0 INSTRUCTIONS FOR FEDERAL CONTRACTORS ALREADY ENROLLED IN E-VERIFY ……………………………………………………………………………………………………….20 8.1 UPDATING YOUR VERIFICATION PROCESS.................................................................20 8.2 UPDATING YOUR COMPANY PROFILE ..........................................................................21 8.3 FEDERAL CONTRACTOR TUTORIALS ...........................................................................21 9.0 INFORMATION FOR DESIGNATED AGENTS.................................................................22 9.1 RECOMMENDED ACTIONS FOR DESIGNATED AGENTS ............................................22 9.2 USING WEB SERVICES....................................................................................................22

Page 3 of 22 | Supplemental Guide for Federal Contractors | September 8, 2009 www.dhs.gov/E-Verify

1.0 REGULATIONS AFFECTING FEDERAL CONTRACTORS

1.1 BACKGROUND

A presidential executive order and subsequent Federal Acquisition Regulation (FAR) rule require federal contractors to use E-Verify to electronically verify the employment eligibility of employees working under Federal contracts. The order and rule reinforces Federal government policy that the Federal government does business with organizations that have a legal workforce.

1.1.1 EXECUTIVE ORDER 12989

On June 11, 2008, President George W. Bush amended Executive Order 12989 to direct all Federal departments and agencies to require contractors to use an electronic employment eligibility verification system to verify the employment eligibility of employees performing work under a federal contract. The Department of Homeland Security (DHS) designated E-Verify as the electronic employment eligibility verification system that all federal contractors must use as required by the amended Executive Order 12989.

1.1.2 THE FEDERAL CONTRACTOR RULE

On November 14, 2008, the Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council published a FAR final rule (FAR case 2007-013, Employment Eligibility Verification) that implements the amended Executive Order 12989. The FAR is a set of rules and regulations used to manage the way the Federal government acquires supplies and services with appropriated funds.

The FAR final rule, known as the Federal contractor rule, directs Federal agencies to require many Federal contractors to use E-Verify to electronically verify the employment eligibility of certain of their employees. It requires Federal contractors to agree, through language inserted into their Federal contracts, to use E-Verify to confirm the employment eligibility of all persons they hire during a contract term, as well as their current employees who perform work under a Federal contract within the United States. The rule’s requirements to include language on E-Verify in Federal contracts take effect on September 8, 2009.

1.1.3 ABOUT E-VERIFY

E-Verify is a free, Internet-based system operated by DHS in partnership with the Social Security Administration. E-Verify allows participating employers to electronically verify their employees’ employment authorization. Results are returned online within seconds.

E-Verify is the best method for employers to verify the employment authorization of their employees. E-Verify:

• Virtually eliminates Social Security mismatch letters

• Improves the accuracy of wage and tax reporting;

• Protects jobs for authorized workers; and

• Helps U.S. employers maintain a legal workforce.


More than 96 percent of E-Verify verification queries receive immediate employment authorization. Employees who do not receive instant authorization and choose to correct their government records to confirm their employment authorization must be allowed to continue to work during this process.

As of August 2009, more than 142,718 employers participate in E-Verify. In fiscal year 2008, U.S. employers completed more than 6.6 million E-Verify queries; this number represents 1 out of every 8 nonagricultural hires made in the United States.

1.2 HOW TO DETERMINE WHETHER YOU ARE AFFECTED BY THE RULE

The rule will only affect Federal contractors who are awarded a new contract on or after the effective date of the rule, September 8, 2009, that includes the Federal Acquisition Regulation (FAR) E-Verify clause (73 FR 67704).

Your government contracting official, not the E-Verify program, determines whether your contract will include the FAR E-Verify clause. You should review your contract for the FAR E-Verify clause, and check with your government contracting official if you have questions.

Using E-Verify as a Federal contractor requires you to verify the employment authorization of:

• Existing employees currently assigned to a Federal contract, and

• All new hires.

Federal contractors also have the option of verifying their entire workforce, which includes all other existing company employees regardless of whether they are assigned to a Federal contract. If your company is not a Federal contractor, or if your Federal contract does not include the FAR E-Verify clause, you may only use E-Verify to verify new employees.

2.0 INSTRUCTIONS FOR VERIFYING NEW AND EXISTING EMPLOYEES ON FORMS I-9

2.1 VERIFYING NEW EMPLOYEES

Newly hired employees must complete Form I-9, regardless of whether they are assigned to a Federal contract. Employers should comply with Form I-9, Employment Eligibility Verification, procedures found in the Handbook for Employers: Instructions for Completing Form I-9 (Rev.07/31/09) (M-274) found at www.uscis.gov. As an E-Verify employer, you also have additional requirements for Form I-9 that other employers do not have:

• You may only accept a List B document that contains a photo (if your employee cannot provide such a document because of religious objections, contact E-Verify Customer Support at 1-888-464-4218).

• You must photocopy any Employment Authorization Document (Form I-766) or Permanent Resident Card (Form I-551) if your employee presents one of these documents and keep it with that employee’s Form I-9.

• Your employees must write their Social Security numbers on Section 1 of Form I-9.


http://www.uscis.gov/

To initiate an E-Verify query, enter the information from the employee’s completed Form I-9 into E-Verify. For detailed information and guidelines on using E-Verify, refer to the Federal Contractor User Manual.

2.2 VERIFYING EXISTING EMPLOYEES

To comply with the FAR rule, you must verify all new hires and existing employees assigned to the contract. However, you may decide to exceed the requirements of the rule and verify your entire workforce. Then, you must decide how to verify your employees. This process will require three steps:

Step 1: Decide whether you want to verify:

• Only those existing employees for whom you must initiate verification as explained in Sections 3, 4 and 5 of this guide, or

• Your entire existing workforce.

You must mark your selection in E-Verify when enrolling in the system for the first time or if your company is already enrolled, by selecting the Maintain Company link in E-Verify to update your company’s information.

NOTE

If you choose to verify your entire existing workforce in E-Verify, you must verify all of your existing employees except those that are exempt. Once you decide whether to verify the entire workforce.

Step 2: Determine which existing employees are exempt from the Form I-9 process or have special requirements relating to the verification process:

Verification of your employees requires that you complete or update Form I-9 as well as perform an E-Verify query. However, some employees are exempt from the employment verification process, including Form I-9, under the Federal contractor rule.

Employees Exempt from the Form I-9 Process

Employees who were hired before November 7, 1986 are exempt from completing Form I-9 and cannot be verified in E-Verify.

Employees with Special Requirements Relating to the Verification Process

Although you may not be required to verify certain employees in E-Verify, you must still comply with Form I-9 regulations. For more information on updating and reverification of Form I-9, consult the Handbook for Employers: Instructions for Completing Form I-9 (M-274) (rev. 07/31/09) found at www.uscis.gov.


http://www.uscis.gov/

Figure 1: Employees with Special Requirements in the Verification Process

FORM I-9 E-VERIFY

Employees previously verified in E-Verify

You must update or reverify these employees as necessary under Form I-9 regulations, such as when their biographical or immigration status information changes.

These employees may not be reverified in E-Verify. See also Section 3.3, Figure 5.

Employees who have an active confidential, secret, or top secret security clearance in accordance with the National Industrial Security Program Operating Manual (NISPOM) or Homeland Security Presidential Directive-12 (HSPD-12) credential

If these individuals are new employees, they must complete Form I-9. If the individuals are existing employees, you must update or reverify them as necessary under Form I-9 regulations, such as when their biographical or immigration status information changes.

If these employees meet certain requirements, you are not required to verify them in E-Verify. See Section 3.3 for additional information.

Step 3: Completing new Forms I-9 or Updating Existing Forms I-9

Decide how you will verify your existing employees’ information on their Form I-9. You may either:

• Complete new Forms I-9 for your existing employees, or

• Update your employees’ existing Forms I-9.

NOTE ON RETENTION OF FORMS I-9

Whichever option you choose, you will be required to retain any previously completed Form I-9 for that employee. You are also required to make the previous form available for inspection if it is requested by an authorized official.

To assist you in making this decision, please review the chart below.


Figure 2: Options for Updating Existing Employees on Form I-9

VERIFICATION PROCESS AVOIDING LIABILITY

HOW THIS DECISION AFFECTS YOU

Option I:

Complete new Forms I-9 for all employees

Complete new Forms I-9 for those existing employees that need to be verified. The current rules for Form I-9 apply.

Verifying all employees the same way helps avoid possible discrimination.

You may find this option easier because the process is the same as the process for newly hired employees.

Option II:

Complete new Forms I-9 when necessary and update existing Forms I-9 when allowable

You must carefully examine and review with those employees that need to be verified, their previously submitted Forms I-9 to determine:

1) which employees must be verified on a new Form I-9; and

2) which employees can be verified by updating their existing Form I-9.

To avoid possible Form I-9 violations, you must carefully determine which cases require a new Form I-9 using the guidance in Section 2.2.1.

This option may suit your company’s needs if you:

1) have few employees and/or

2) have sufficient resources to determine if your company needs to complete a new Form I-9 or update the existing one for each employee, using the guidance in Section 2.2.1.

2.2.1 INSTRUCTIONS FOR OPTION II: COMPLETE NEW FORM I-9 WHEN NECESSARY AND UPDATE EXISTING FORMS I-9 WHEN ALLOWABLE

Note: This section only applies to employers who have selected Option II

If you choose to review and verify with the existing employees, their information on their existing Forms I-9, there will be instances where you must complete a new Form I-9. A new Form I-9 must be completed if your employee:

• Presented an expired document on a previous Form I-9 that allowed for such documents;

• Is an alien whose employment authorization as stated in Section 1 of Form I-9 has expired;

• Presented a List B document that did not have a photo when he or she completed the previous Form I-9;

• Presented a List B document on a previous Form I-9 and you are unable to determine if that document had a photo;

• Was at the time of attestation a Noncitizen National of the United States and was unable to attest to his or her correct status in Section 1 of Form I-9 with a revision date before 02/02/09;

• Had a change in his or her immigration status;

• Changed his or her name; or


• Completed his or her previous Form I-9 and it did not comply with Form I-9 requirements at the time of completion.

Instructions for updating a previously completed Form I- 9:

• If your employee presented an unexpired Form I-551 or U.S. Passport on a previous Form I-9 and that document has since expired, and his or her employment authorization is still current, you may not request that the employee present an unexpired version of either document. However, as is stated in Section 2.2.1, a new Form I-9 can be completed.

SPECIAL E-VERIFY INSTRUCTION FOR PHOTO MATCHING TOOL

Because the E-Verify system only accepts unexpired documents, if you enter an expired document into the system, this may result in that employee receiving a tentative nonconfirmation. To find out how to avoid this situation, call E-Verify Customer Support at 1-888-464-4218.

• If your employee presented an unexpired Form I-551 (Permanent Resident Card) or Form I-766 (Employment Authorization Document) and it is still unexpired, photocopy the document and keep it with the employee’s Form I-9.

• If your employee did not provide his or her Social Security number (SSN) when completing a previous Form I-9, or if the employee claims that his or her number has changed since then, the employee should update Section 1 of the previous Form I-9 with his or her current Social Security number.

• If your employee’s Alien number has changed, the employee should update Section 1 of the previous Form I-9 with his or her current Alien number.

3.0 E-VERIFY ENROLLMENT AND PARTICIPATION AS A FEDERAL CONTRACTOR Companies awarded a Federal contract that includes the FAR E-Verify clause must enroll in E-Verify. This section will assist you in when and how to enroll in and use E-Verify.

3.1 OVERVIEW OF E-VERIFY ENROLLMENT AND USE

If you are awarded a Federal contract that contains the FAR E-Verify clause, you must enroll in E-Verify and use it to confirm the employment authorization of:

• All newly hired employees, regardless of whether they are assigned to the qualifying Federal contract (note that certain exceptions apply, see Section 4 for additional information), and

• Existing employees assigned to the qualifying Federal contract.

If your company or organization qualifies under the FAR contractor rule exemption or exception, you may not be required to verify all newly hired employees. For more information on exemptions and exceptions, see Section 5.


3.2 DEADLINES FOR ENROLLMENT AND VERIFYING EMPLOYEES

If your company is not yet enrolled in E-Verify, you must:

• Enroll in E-Verify as a Federal contractor within 30 calendar days of the award date of a contract that contains the FAR E-Verify clause.

• Begin verifying all newly hired employees within 90 calendar days of your enrollment date, unless your company qualifies for an exemption.

• Initiate verification of all existing employees assigned to the qualifying contract within 90 calendar days of your enrollment date.

• Initiate verification of all existing employees within 180 calendar days of notifying us that you’ve chosen to verify your entire workforce.

Figure 3: Timeline for New Federal Contractors Enrolling in E-Verify

90 days from enrollment


Enroll in E-Verify

30

Verify newly hired employees

Verify existing workers assigned to a contract

120

Verify all existing workers if this option is chosen

210

Contract awarded with FAR E-Verify Clause



Enroll in E-Verify

30



120


210




If your company is already enrolled in E-Verify, but not designated as a Federal contractor in E-Verify, you must:

• Update your company profile in E-Verify and designate your company as a Federal contractor within 30 calendar days of the award date of a contract that contains the FAR E-Verify clause or an existing contract that has been modified to include the E-Verify clause.

• Begin verifying all newly hired employees within 90 calendar days of designating your company as a Federal contractor in E-Verify. Note that if you are already verifying new hires under the MOU, you should not stop doing so.

• Initiate verification of all existing employees assigned to the qualifying contract within 90 calendar days of designating your company as a Federal contractor in E-Verify.

• Initiate verification of all existing employees within 180 calendar days of notifying us that you’ve chosen to verify your entire workforce.


Figure 4: Timeline for Existing E-Verify Participants


Enroll in E-Verify

30



120


210




Enroll in E-Verify

30



120


210




If your company is already enrolled but not designated as a Federal contractor in E-Verify, and you have been using E-Verify only for selected hiring sites, you must determine if the E-Verify clause is in your contract. If it is, you must:

• Begin verifying all newly hired employees from all hiring sites within 90 calendar days of updating your company profile and designating your company as a Federal contractor in E-Verify. For more information, please see Section 8 of this guide.

If your company is already enrolled in E-Verify as a Federal Contractor, and the E-Verify clause is in your contract, you must:

• Initiate verification of all existing employees assigned to the Federal contract that includes the FAR E-Verify clause within either:

o 90 calendar days of the contract award date, or

o 30 calendar days of the employee’s assignment to the contract, whichever date is later.

3.3 EMPLOYEES WHO ARE EXEMPT FROM E-VERIFY

Some employees are exempt from the E-Verify requirement to verify current employees assigned to the contract.

Figure 5: Employees Completely Exempt from E-Verify

EMPLOYEE: EXEMPT FROM E-VERIFY

Hired before November 7, 1986 and continuing in employment √ Previously confirmed as authorized to work in E-Verify (but not exempt if a new hire) √


Figure 6: Employees You are Not Required to E-Verify

EMPLOYEES WHO: E-VERIFY NOT REQUIRED

Perform support work such as general company administration or indirect or overhead functions and do not perform any substantial duties applicable to the contract (but not exempt if a new hire).

√

Have an active confidential, secret, or top secret security clearance in accordance with the National Industrial Security Program Operating Manual (NISPOM) or Homeland Security Presidential Directive-12 (HSPD-12) credential; a background check alone is not enough to qualify for this exemption (also exempt if new hire).

Note: Transportation Worker Identification Credential (TWIC) cards do not qualify.

√

For example: XYZ, Inc. hires Jane Doe, who has a top secret clearance, to work on a Federal contract. XYZ still must enroll in E-Verify and use E-Verify for its other employees, but is not required to use E-Verify for Jane. XYZ should note on Jane’s Form I-9 that she was exempt from E-Verify because of her security clearance. Even if every employee at XYZ has a security clearance, XYZ still must enroll in E-Verify because the Federal contractor rule contains no enrollment exception for companies whose employees all have security clearances.

3.4 GOING FORWARD

Once your company has completed the above requirements and has been enrolled for 90 days or more, you must ensure that you continue to verify all of your newly hired, nonexempt employees in E-Verify within 3 business days of their start dates.


3.5 FEDERAL CONTRACTOR ENROLLMENT AND VERIFICATION TIMELINE

REMINDER: You may only verify employees working in the United States who were hired after November 6, 1986.

WHEN DO I ENROLL IN E-VERIFY?

WHEN DO I VERIFY NEW HIRES?

WHEN DO I VERIFY EXISTING EMPLOYEES ASSIGNED TO A CONTRACT?

WHEN DO I VERIFY ALL EXISTING EMPLOYEES IF I CHOOSE TO DO SO?

NEW E-VERIFY USERS

Within 30 calendar days of contract award.

Begin verification of all new hires within 90 calendar days of enrollment.

Once you begin verifying new hires, initiate a query no later than the 3rd business day after the employee’s start date. *

Verify all existing employees assigned to a contract within 90 calendar days of enrollment

OR

Within 30 calendar days of employee’s assignment to a contract, whichever date is later.

Verify all existing employees, regardless of whether they are assigned to a Federal contract, within 180 calendar days of notifying DHS through E-Verify.

EXISTING E-VERIFY USERS

Do NOT re-enroll. Instead, update your “Maintain Company” page in E-Verify to reflect “Federal Contractor” and complete the Federal Contractor Refresher Tutorial.

Enrolled 90 calendar days or more:

No later than the 3rd business day after the employee’s start date. *

-----------------------

Enrolled less than 90 calendar days: Begin verification of new hires within 90 calendar days of enrollment.

Once you begin verifying new hires, initiate a query no later than the 3rd business day after the employee’s start date. *

Verify all existing employees assigned to a contract within 90 calendar days of contract award

OR

Within 30 calendar days of employee’s assignment to a contract, whichever date is later.

Verify all existing employees, regardless of whether they are assigned to a Federal contract, within 180 calendar days of notifying DHS through E-Verify.

* For new hires, you must initiate a query anytime after an individual has accepted an offer of employment and the employer and employee have completed the Form I-9, but no later than the 3rd business day after the employee begins working for pay.


4.0 ENROLLMENT INSTRUCTIONS FOR Certain ORGANIZATIONS THAT QUALIFY FOR EXCEPTIONS Certain organizations that are awarded a Federal contract that includes the FAR E-Verify clause qualify for an exception. This exception only requires the use of E-Verify for new hires and existing employees who work directly under a covered contract. These organizations include:

• State and local governments

• Institutions of higher education (as defined at 20 U.S.C. 1001(a))

• Governments of Federally recognized Native American tribes

• Sureties performing under a takeover agreement entered into with a Federal agency under a performance bond

You will indicate that your organization qualifies for the exception when you enroll in E-Verify or when you update your company profile, if your company is already enrolled.

Note: Your Form I-9 requirements are equivalent to the requirements for any other Federal contractor whose contract contains the FAR E-Verify clause. See Section 2 for more information.

4.1 YOUR OPTIONS

Your organization may choose which new employees you will verify through E-Verify:

• All new employees throughout your company, or

• Only those new employees working on a Federal contract that includes the FAR E-Verify clause.

You may also choose which existing employees you will verify in E-Verify:

• Only those existing employees working on a Federal contract that includes the FAR E-Verify clause, or

• All existing employees throughout your company (your company’s entire workforce).

NOTE: If you choose to verify your entire existing workforce in E-Verify, you must verify all of your existing employees except those that are exempt. Once you decide either to verify the entire workforce or to verify only those employees assigned to a contract with the FAR E-Verify clause, you cannot change that decision.

For more information on exceptions for certain organizations, see Section 5.

4.2 VERIFYING YOUR ENTIRE WORKFORCE

If you choose to verify your entire workforce rather than just the employees assigned to a qualifying Federal contract, you must:

1. Notify us that you’ve chosen to verify your company’s entire workforce by:

• Choosing the entire workforce option during the E-Verify initial enrollment process, or

• Updating your company profile.


2. Initiate an E-Verify query for each employee within 180 calendar days of notifying us that you’ve chosen to verify your entire workforce.

4.3 INITIAL ENROLLMENT IN E-VERIFY

If your organization is not yet enrolled in E-Verify, you must enroll in E-Verify. During enrollment:

1. You will be asked, Which category best describes your organization? Choose Federal Contractor.

2. You will then be asked, Which Federal contractor category best describes your organization? Choose the option that best describes your company, then click Next.

• To verify your entire workforce, you must select None of these categories apply even if your company qualifies for one of the other categories.

3. You will then be asked, Which employees will your company verify? Choose the option which best fits your company’s needs.

4.4 INSTRUCTIONS FOR UPDATING YOUR COMPANY PROFILE FOR EXISTING E-VERIFY PARTICIPANTS

If your organization is already enrolled in E-Verify, you must update your company profile in E-Verify. To do so:

1. Log in to E-Verify as a program administrator or ask your company’s E-Verify program administrator to perform this function.

2. Once logged in, click Maintain Company on the left-hand side menu.

3. From the Maintain Company page, click on the first View/Edit button.

4. On the Organization Designation section, next to Employer Category, click Edit.

5. When asked, Which category best describes your organization? choose Federal Contractor, then click Next.

6. When asked, Which Federal Contractor category best describes your organization? choose the option that best describes your company, then click Next.

• To verify your entire workforce, you must select None of these categories apply even if your company qualifies for one of the other categories.

7. When asked, Which employees will your company verify? choose the option that best fits your company’s needs, then click Next.

8. Review your company information, then click Save & Continue.


5.0 QUALIFYING CONTRACTS, EXEMPTIONS AND EXCEPTIONS FOR E-VERIFY This section will assist you in determining whether your company has a qualifying Federal contract, which existing employees are exempt from verification in E-Verify and which companies are exempt from the Federal Contractor rule.

5.1 THE E-VERIFY CLAUSE IN A FEDERAL CONTRACT

Only Federal contracts awarded and solicitations issued after September 8, 2009, will include the FAR E-Verify clause that requires government contractors to use E-Verify. Your government contracting official will determine whether your contract qualifies for the FAR E-Verify clause, based on the criteria below. Subcontracts for more than $3,000 for services or construction also qualify for the clause.

If your Federal contract contains the FAR E-Verify clause, subject to certain exceptions as described in the Federal contractor rule and this Manual, you must use E-Verify to confirm the employment authorization of:

• All persons hired during a contract term, and • Current employees who perform work under a Federal contract within the

United States.

To verify these individuals, you must:

• Enroll in E-Verify within 30 days of the contract award date. • Use E-Verify to initiate verification of all your new hires and existing

employees working directly on Federal contracts are authorized to work in the United States.

If your Federal contract does not include the FAR E-Verify clause, you are not required to enroll in and use E-Verify as a Federal contractor, but may participate voluntarily.

5.2 HOW TO DETERMINE WHETHER YOUR FEDERAL CONTRACT QUALIFIES

Your government contracting official, not the E-Verify program, will decide whether your Federal contract qualifies for the E-Verify clause if it meets the following criteria:

• The contract was awarded on or after the Federal contractor rule effective date of September 8, 2009 and includes the FAR E-Verify clause.

• The contract has a period of performance that is more than 120 days.

• The contract’s value exceeds the simplified acquisition threshold of $100,000.

• At least some portion of the work under the contract is performed in the United States.

If you already have a Federal contract that meets any of these criteria, your government contracting official may modify your contract as needed.

If you have further questions about whether your Federal contract qualifies under the Federal Contractor rule:

• Check with your government contracting official and staff to clarify your obligations.


• Speak with your legal counsel if the government contracting official cannot assist you.

5.3 IDIQ CONTRACTS

If you have an existing indefinite-delivery/indefinite-quantity (IDIQ) contract, your government contracting official may modify it on a bilateral basis to include the FAR E-Verify clause for future orders, in accordance with FAR 1.108(d)(3), when

• The remaining period of performance extends at least six months after the effective date of the rule and/or

• The amount of work or number of orders expected under the remaining period of performance is substantial.

If the clause is included in a modification of your IDIQ contract, you will be required to participate in E-Verify within 30 days of the modification date.

5.4 CONTRACTS EXEMPT FROM THE FEDERAL CONTRACTOR RULE

Companies whose contracts are exempt from the Federal contractor rule are not required to enroll in E-Verify. A contract is considered exempt if any one of the following apply:

• It is for fewer than 120 days.

• It is valued at less than $100,000 the simplified acquisition threshold.

• All work is performed outside the United States.

• It includes only commercially available off-the-shelf (COTS) items and related services.

Your company may voluntarily enroll in and use E-Verify at any time. If your company is awarded a Federal contract in the future that includes the FAR E-Verify clause, then at that time, you would be required to enroll and use E-Verify.

5.5 SPECIAL REQUIREMENTS FOR CERTAIN ORGANIZATIONS

The Federal contractor rule generally requires use of E-Verify for all new employees, regardless of whether they are assigned to a Federal contract. However, the following organizations awarded a Federal contract that includes the FAR E-Verify clause are only required to use E-Verify for new hires and existing employees who are working directly under a covered contract:

• State and local governments

• Institutions of higher education (as defined at 20 U.S.C. 1001(a))

• Governments of federally recognized Native American tribes

• Sureties performing under a takeover agreement entered into with a federal agency under a performance bond

For example: A city government has a Federal contract that includes the FAR E-Verify clause. After the Federal contractor rule implementation date, it hired Doris to work on a contract containing the FAR E-Verify clause and hired Frank to work on a project that is not part of a Federal contract. The city government need only verify new and existing employees assigned to a qualifying Federal contract. Therefore, the Page 17 of 22 | Supplemental Guide for Federal Contractors | September 8, 2009 www.dhs.gov/E-Verify

city government must use E-Verify to verify Doris, but is not required to verify Frank. The city is not required to verify anyone else on the staff not working on the Federal contract, but may choose to verify the entire staff.

6.0 SUBCONTRACTORS, INDEPENDENT CONTRACTORS AND AFFILIATES

6.1 SUBCONTRACTORS

The Federal contractor rule requires certain Federal prime contractors to require their subcontractors to use E-Verify when:

1. The prime contract includes the FAR E-Verify clause; 2. The subcontract is for commercial or noncommercial services or construction; 3. The subcontract has a value of more than $3,000; and 4. The subcontract includes work performed in the United States

Subcontractors who are suppliers are not subject to the Federal contractor rule.

6.2 PRIME CONTRACTOR AND SUBCONTRACTOR OBLIGATIONS

The prime contractor should provide general oversight to subcontractors to ensure that they meet the E-verify requirement. The prime contractor may be subject to fines and penalties if it knowingly continues to work with a subcontractor who is in violation of the E-Verify requirement. As proof of enrollment, the subcontractor should provide the prime contractor a copy of its Maintain Company page, which can be printed directly from E-Verify.

Prime contractors are not responsible for verifying the subcontractors’ individual employees. However, the prime contractor must, by whatever means the contractor considers appropriate, ensure that all covered subcontracts at every tier incorporate the E-Verify clause at FAR 52.222-54, Employment Eligibility Verification, and that all subcontractors use the E-Verify system.

The subcontractor may designate the prime contractor as its agent for ensuring E-Verify compliance. The prime contractor must be enrolled in E-Verify as a designated agent to verify its subcontractors’ employees.

6.3 INDEPENDENT CONTRACTORS AND SELF-EMPLOYED INDIVIDUALS

Form I-9 rules govern whether an individual is considered self-employed with respect to using E-Verify. Generally, self-employed individuals are not required to complete Forms I-9 on themselves, and therefore, are not required to use E-Verify. However, all employers, including sole proprietorships, are required to complete a Form I-9 for each employee they hire. Employers will need to confirm the employment authorization in E-Verify of each employee working under a Federal contract that includes the FAR E-Verify clause.

Employers are not required to complete Forms I-9 and use E-Verify for their independent contractors. The Form I-9 regulations use common-law understandings of employer-employee relationships to describe who is an independent contractor.

Employers are not required to verify employees of its independent contractor. However, if the independent contractor is a subcontractor under a Federal contract


covered by the E-Verify clause, the E-Verify requirement will flow down to the independent contractor, who must use E-Verify to verify its own employees.

For example: Acme Corporation enters into a Federal contract covered by the E-Verify clause to construct a Federal building and must verify its own employees in E-Verify. Acme subcontracts with Don Draftsman, a self-employed individual, to provide some technical drawings. Acme also subcontracts with Edwards Engineering to install some equipment. Both subcontracts are for more than $3,000 and are covered by the E-Verify clause. Both companies carry on independent business, perform their work according to their own means and methods, and are subject to Acme’s control only as to results.

Acme does not use E-Verify to verify either Don Draftsman’s employment authorization or the employment authorization of Edwards Engineering’s employees. However, Acme is responsible under the Federal contractor rule for ensuring that Edwards Engineering, as Acme’s subcontractor on a covered Federal contract, enrolls in E-Verify and verifies its new hires and its existing employees assigned to the Federal subcontract.

While Acme is also responsible for ensuring Don Draftsman’s compliance with the E-Verify clause, as a self-employed individual, Don does not need to complete a Form I-9 on himself or enroll in E-Verify. Nor does ACME need to run Don through E-Verify. Under the employer sanction rules applicable to any employer, Acme cannot use an independent contractor if it knows that the independent contractor is an alien who is not authorized to work in the United States.

6.4 SUBSIDIARIES AND AFFILIATES

Only the legal entity (business) that signs the contract is considered the contractor, and is bound by the E-Verify obligation.

Whether certain subsidiaries and affiliates are a part of the legal contracting entity depends on the specific factual context. Consult your legal counsel if you have additional questions about this topic.

Remember, the Federal Acquisition Regulation, and therefore the Federal contractor rule, does not extend to contracts under which all work is exclusively performed outside the United States. The U.S. territories of American Samoa and the Commonwealth of the Northern Mariana Islands are not considered part of the United States as defined for purposes of the Federal contractor rule.

7.0 ENROLLMENT INSTRUCTIONS FOR CONTRACTORS NOT YET ENROLLED IN E-VERIFY If your company is awarded a Federal contract that includes the FAR E-Verify clause, you must enroll in E-Verify. This section will help you to enroll in E-Verify if you are a new E-Verify user that has never before enrolled.

7.1 OPTIONS FOR VERIFYING EXISTING EMPLOYEES

At a minimum, your company must verify existing employees who work on a Federal contract that includes the FAR E-Verify clause. Before you enroll in E-Verify, decide whether you would like to verify:

• Only those employees working on the Federal contract with the FAR E-Verify clause


o With this option, you must track which employees are assigned to a Federal contract that includes the FAR E-Verify clause to ensure that you only verify those employees working on the qualifying contract. You must also track which employees have already been verified through E-Verify.

• Your entire workforce

o For some employers, choosing to verify your entire workforce may simplify the E-Verify process.

7.2 FEDERAL CONTRACTOR ENROLLMENT STEPS

When you enroll your company, you will need to tell us some basic information about your company and agree to follow the rules of our program in the Memorandum of Understanding (MOU). During enrollment:

1. You’ll be asked Which category best describes your organization?

• If your company has been awarded a Federal contract that includes the FAR E-Verify clause, click Federal Contractor, then click Next.

• If your company has not yet been awarded a Federal contract that includes the FAR E-Verify clause, choose the category that best describes your organization, then click Next.

2. If you selected Federal Contractor as the category which best describes your organization, you’ll be asked Which Federal Contractor category best describes your organization? Choose the Federal contractor category that best describes your organization, then click Next.

3. You’ll then be asked which employees will your company verify? Choose the option that best applies to your company and then click Next. Your options are:

• Use E-Verify for all new employees throughout your company and for only those existing employees working on a Federal contract that includes the FAR E-Verify clause, or

• Use E-Verify for all new employees and existing employees throughout your company.

Once you are enrolled, you can register yourself and others to use the system.

8.0 INSTRUCTIONS FOR FEDERAL CONTRACTORS ALREADY ENROLLED IN E-VERIFY If your company is awarded a Federal contract that includes the FAR E-Verify clause, you must enroll in E-Verify. This section will help you to update your company profile and verification process in E-Verify if you are already enrolled.

8.1 UPDATING YOUR VERIFICATION PROCESS

The Federal contractor rule adds some new requirements and removes some of the flexibility that your company traditionally has had in deciding how it uses E-Verify. Depending on how your company has been using E-Verify, you may need to make some changes to how you use the system. For instance, if your company has been


selectively using E-Verify at certain hiring sites, but not others, you must begin using E-Verify at all of your company’s hiring sites.

For example: You only use E-Verify to verify employees at your Arizona locations. In your company profile, only your Arizona locations are listed. As a Federal contractor, you must include all of your company’s hiring sites in your company profile. Also, because you are required to verify all of your newly hired employees with certain exceptions, you’ll no longer be able to use E-Verify on a location-by-location basis.

You do not need to wait to expand your use of E-Verify to all of your company’s hiring sites until you are awarded a Federal contract that includes the FAR E-Verify clause. If you expand your E-Verify use now, your company will be ready if it is awarded a Federal contract that includes the FAR E-Verify clause.

8.2 UPDATING YOUR COMPANY PROFILE

Once your company is awarded a Federal contract that includes the FAR E-Verify clause, you must designate your company as a Federal contractor in E-Verify. You should not do so until you officially receive a qualifying Federal contract.

To designate your company as a Federal contractor, you must update your company profile:

1. Log in to E-Verify as a program administrator. If you are not a program administrator, ask your E-Verify program administrator to perform this function.

2. Once logged in, click Maintain Company in the left-hand side menu. 3. From the Maintain Company page, click on the first View/Edit button. 4. On the Organization Designation section, next to Employer Category, click

Edit. 5. On the Company Designation page, you’ll be asked, Which category best

describes your organization? Click Federal Contractor, then click Next. 6. You’ll then be asked Which Federal Contractor category best describes

your organization? Click the option which best describes your organization 7. You’ll then be asked Which employees will your company verify? Click the

option which best meets your company’s needs and then click Next. 8. Review your company information and click Save & Continue.

8.3 FEDERAL CONTRACTOR TUTORIALS

Once you have changed your company designation to Federal contractor, your E-Verify program administrators and general users must successfully complete a Federal contractor-specific tutorial and pass a mastery test before they can use E-Verify again.

8.4 MEMORANDUM OF UNDERSTANDING

As a Federal contractor using E-Verify, your company must comply with the Federal contractor-specific terms of the E-Verify Memorandum of Understanding (MOU).

• Depending on when your company enrolled in E-Verify, the MOU that your company signed may not contain the new Federal contractor-specific terms.

• All E-Verify-enrolled companies must comply with the terms of the current MOU.


• We recommend that you review the current MOU to ensure your company

complies with any new terms.

9.0 INFORMATION FOR DESIGNATED AGENTS E-Verify service providers, also known as designated agents, use E-Verify to verify the employment authorization of their clients’ employees. This section will assist designated agents and their clients in preparing for the effects of the Federal contractor rule.

9.1 RECOMMENDED ACTIONS FOR DESIGNATED AGENTS

1. Update E-Verify profiles

• For your Federal contractor clients Update each of your Federal contractor client company profiles separately to designate it as a Federal contractor.

• For your own company Only update your designated agent profile to designate yourself as a Federal contractor if you are a Federal contractor that was awarded a contract that contains the FAR E-Verify clause.

2. Ensure that you meet the tutorial requirement

Before updating a company profile to designate Federal contractor, inform the program administrators and general users of that profile that they must complete a Federal contractor-specific tutorial and pass a mastery test before accessing E-Verify again.

3. Review the latest E-Verify Memorandum of Understanding (MOU)

All E-Verify-enrolled companies must comply with the terms of the current E-Verify MOU, which contains Federal contractor-specific terms with which both Federal contractor client companies and their designated agents must comply. Depending on when you enrolled in E-Verify, your original MOU may not contain these terms. Therefore, you should review the current MOU to ensure your company complies with the Federal contractor-specific terms of the current E-Verify MOU.

9.2 USING WEB SERVICES

Companies using Web Services to perform E-Verify queries must update their software to support the E-Verify system functions for federal contractors. If you are an employer or designated agent that uses E-Verify Web services whose clients are affected by the Federal contractor rule, you should use the Web browser application of E-Verify until you have upgraded to the latest Interface Control Document (ICD). You may continue to use your Web Services software to process queries for non-Federal contractors.

NOTE

E-Verify Photo Tool is not yet available for designated agents.


Labor & Employment AttorneysAshley D. BrightwellAlston & Bird LLPOne Atlantic Center1201 West Peachtree StreetAtlanta, GA 30309-3424 404-881-7767 [email protected]

Lisa H. CassillyAlston & Bird LLPOne Atlantic Center1201 West Peachtree StreetAtlanta, GA 30309-3424 [email protected]

Brett E. CoburnAlston & Bird LLPOne Atlantic Center1201 West Peachtree StreetAtlanta, GA [email protected]

Erin L. ConnollyAlston & Bird LLPOne Atlantic Center1201 West Peachtree StreetAtlanta, GA 30309-3424 404-881-7393 [email protected]

Patrick L. CoyleAlston & Bird LLPOne Atlantic Center1201 West Peachtree StreetAtlanta, GA 30309-3424 [email protected]

Rory J. DiamondAlston & Bird LLP333 South Hope Street16th FloorLos Angeles, CA [email protected]

Martha S. DotyAlston & Bird LLP333 South Hope Street16th FloorLos Angeles, CA [email protected]

Clare H. Draper, IVAlston & Bird LLPOne Atlantic Center1201 West Peachtree StreetAtlanta, GA 30309-3424 404-881-7191 [email protected]

R. Steve EnsorAlston & Bird LLPOne Atlantic Center1201 West Peachtree StreetAtlanta, GA 30309-3424 404-881-7448 [email protected]

Marilee FiebigAlston & Bird LLPOne Atlantic Center1201 West Peachtree StreetAtlanta, GA 30309-3424 [email protected]

Kimberly L. FogartyAlston & Bird LLPOne Atlantic Center1201 West Peachtree StreetAtlanta, GA 30309-3424 [email protected]

Charles A. Gartland IIAlston & Bird LLPOne Atlantic Center1201 West Peachtree StreetAtlanta, GA 30309-3424 [email protected]

Matthew J. GilliganAlston & Bird LLPOne Atlantic Center1201 West Peachtree StreetAtlanta, GA 30309-3424 404-881-7158 [email protected]

Melissa S. HsiehAlston & Bird LLPOne Atlantic Center1201 West Peachtree StreetAtlanta, GA 30309-3424 404-881-7371 [email protected]

Jesse M. JaureguiAlston & Bird LLP333 South Hope Street16th FloorLos Angeles, CA 90071213-576- [email protected]

Sayaka KaritaniAlston & Bird LLP333 South Hope Street16th FloorLos Angeles, CA 90071213-576- 1026 [email protected]

J. Thomas KilpatrickAlston & Bird LLPOne Atlantic Center1201 West Peachtree StreetAtlanta, GA 30309-3424 404-881-7819 [email protected]

Christopher C. MarquardtAlston & Bird LLPOne Atlantic Center1201 West Peachtree StreetAtlanta, GA 30309-3424 404-881-7827 [email protected]

Susan B. MolonyAlston & Bird LLPBank of America Plaza101 South Tryon Street, Suite 4000Charlotte, NC 28280-4000 [email protected]

Charles H. MorganAlston & Bird LLPOne Atlantic Center1201 West Peachtree StreetAtlanta, GA 30309-3424 [email protected]

Edmond M. MorrellAlston & Bird LLPOne Atlantic Center1201 West Peachtree StreetAtlanta, GA 30309-3424 404-881- [email protected]

Glenn G. PattonAlston & Bird LLPOne Atlantic Center1201 West Peachtree StreetAtlanta, GA 30309-3424 [email protected]

Robert P. RiordanAlston & Bird LLPOne Atlantic Center1201 West Peachtree StreetAtlanta, GA 30309-3424 404-881-7682 [email protected]

Nicole A. RivasAlston & Bird LLP333 South Hope Street16th FloorLos Angeles, CA 90071213-576- [email protected]

Jonathan RothAlston & Bird LLPOne Atlantic Center1201 West Peachtree StreetAtlanta, GA 30309-3424 404-881- [email protected]

Eileen M.G. ScofieldAlston & Bird LLPOne Atlantic Center1201 West Peachtree StreetAtlanta, GA 30309-3424 404-881- [email protected]

Alicia P. StarkmanAlston & Bird LLPOne Atlantic Center1201 West Peachtree StreetAtlanta, GA 30309-3424 [email protected]

Jeremy TuckerAlston & Bird LLPOne Atlantic Center1201 West Peachtree StreetAtlanta, GA 30309-3424 [email protected]

Camille W. WardAlston & Bird LLPOne Atlantic Center1201 West Peachtree StreetAtlanta, GA 30309-3424 [email protected]

Leslie E. WoodAlston & Bird LLPOne Atlantic Center1201 West Peachtree StreetAtlanta, GA 30309-3424 [email protected]

Michael D. YoungAlston & Bird LLP333 South Hope Street16th FloorLos Angeles, CA 90071213-576- [email protected]

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