January 13, 2009
January 13, 2009
Barran Liebman LLP Electronic Alerts
Attorneys practice labor and employment law
Electronic AlertSM,Vol.12, Issue 1, 1/12/09
In November, a final rule was announced to enforce President Bush’s Executive Order requiring most federal contractors and subcontractors to use E-Verify to confirm employment eligibility for all new hires and all existing employees who directly perform work under a federal contract. (See Barran Liebman LLP E-Alert, Vol. 11 Issue 36.) The effective date of the final rule was to be January 15, 2009, but the federal government has agreed to postpone implementation until February 20, 2009.
The government’s action was taken in response to a lawsuit filed by a coalition of business groups on December 23, 2008, in Maryland (Chamber of Commerce v. Chertoff, D. Md., No. 8:08-cv-03444-AW). The business groups are alleging that the federal government exceeded its authority by requiring participation in a program that was designed as a voluntary program and by mandating the re-verification of existing employees, which is not currently allowed.
The postponement will allow the court in the above case to hold an expedited hearing on the merits. It may also allow time for the new administration to take another look at the policy.
Practically, the government’s agreement to postpone enforcement of the rule means that it will not include an E-Verify clause with the new requirements in any contract solicitations or awards that are issued prior to February 20, 2009.
Under current law, employers must complete an Employment Eligibility Verification Form (Form I-9) for each newly hired employee to verify the employee’s identity and employment eligibility. Under the final rule, federal contractors must also enter the employee’s identity and eligibility information into the E-Verify system. Although the final rule includes an exception for contracts that are for commercially available off-the-shelf items, the E-Verify requirement will be included in all federal contracts awarded after February 20, 2009, that call for a time of performance that exceeds 120 days and that have a value greater than $100,000. Subcontracts of less than $3,000 are also exempted.
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