By Brewster Bevis.
Prior to joining Associated Industries of Florida, Brewster was chief lobbyist for Associated Builders and Contractors in Washington, D.C. Brewster also served as a Presidential Appointee under President George W. Bush in the Office of Congressional Affairs at the U.S. Department of Labor. He also worked on Capitol Hill for a Member of Congress. Brewster’s political experience includes Regional Political Director in Florida for Bush-Cheney ’04 and Political Advisor on a Congressional campaign. Brewster is from Tallahassee, Florida and graduated from Florida State University with a degree in International Affairs.
No one disagrees that America’s immigration system is broken. However, ask 10 different people how it should be fixed and you will get 10 different answers. More than likely, each of those 10 solutions will contain a valid “fix” for a portion of our nation’s immigration woes. However, to truly address Florida’s immigration concerns, the solutions must come from Congress and the federal government.
As Washington, D.C., and state capitals struggle with the proper way to move forward on the controversial issue of immigration reform, the employer community has been at the forefront calling for reforms to E-Verify, border security measures and interior enforcement, as well as future flow immigrant system and addressing the undocumented immigrants who are currently in the United States. While most are firmly committed to a fully comprehensive approach to immigration reform, it is fundamentally understood that getting the current, voluntary E-Verify system right is a critical component of successful reform. This system will impact every U.S. employer, and not just those who use immigrant labor. This is a key point to remember. Mandating E-Verify will impact ALL employers, not just those who depend on foreign-born labor.
Despite recent strides to correct several of the issues with the system, E-Verify remains flawed, error prone and costly. A 2009 study commissioned by the U.S. Department of Homeland Security showed 54 percent of unauthorized workers are approved by E-Verify. This is an unacceptably high error rate. In addition, despite the system being free of charge for employers to use, it still costs the employer money in time and resources to have their HR departments, or related staff, run new hires through the system. A Bloomberg News report released last year showed that in 2010 alone American employers spent an estimated $95 million using the “free” E-Verify system.
Unfortunately, small businesses that are less equipped and often lack a dedicated HR department bear the brunt of these costs. The Bloomberg report indicated that small businesses with less than 500 employees spent approximately $127 per employee query in 2008, and that number is projected to grow with each passing year.
Despite what some believe, employers are strictly prohibited from using E-Verify to “pre-screen” employees. Before an employer can use E-Verify on an employee, the employer has to go through the entire interview process, have an offer of employment accepted by the job candidate and then have the new employee fill out the required Form I-9. This could take weeks of valuable staff time. Thus, an employer must spend time, energy and economic resources in an interview process and actually offer the job prior to using E-Verify. In many industries, construction being a prime example, many employers expend a lot of up-front costs in job and safety training. If an employer was allowed to begin the verification earlier in the hiring process, such as the date of a job acceptance offer, they can better manage their resources. More importantly, they will know whether they need to hold off on expending those limited resources until a final confirmation comes through.
Another burden that E-Verify throws into the lap of employers is that it forces businesses to become document experts. While E-Verify matches a Social Security number to the corresponding person, it does not take into account the potential for identity fraud. Just because the Social Security number matches the identity of the person on the document presented to the employer, it doesn’t mean that’s really the person sitting in front of the employer. Unfortunately, E-Verify expects the employer to make that determination. This presents yet another trap in which employers can find themselves snared. For instance, if an employer thinks that they may be confronted with a case of identity fraud they must tread very lightly because they are still precluded from asking for more documentation for fear of discrimination lawsuits. Now the employer is caught between the proverbial rock and a hard place. Do they simply ignore the potential identity fraud or risk a discrimination lawsuit? This is a choice that no employer should have to face.
In addition to potential discrimination lawsuits, is the very real possibility that employers will face lawsuits following an employee’s termination due to faulty determinations by E-Verify. Under no circumstances should an employer, who in good faith correctly complied with the new verification system and was provided incorrect information by the system, be sued by the former employee or involved in a federal government enforcement action for relying on that information. The potential for these kinds of situations demand adequate safe harbor language. Since E-Verify is a federal program, the only true safe harbor language must originate at the federal level. To put it bluntly, it is highly doubtful that the federal government would heed safe harbor language inserted by a state.
Moreover, it is crucial that we avoid the creation of a patchwork quilt of immigration laws that vary from state to state and municipality to municipality. This patchwork quilt scenario creates yet another maze that employers who operate across state or local jurisdictions must navigate and will only serve to further suppress an already fragile economy.
Focusing only on enforcement of immigration laws through the flawed E-verify system is myopic. When tackling the issue of immigration reform, we must take into consideration the future workforce flow and current labor needs of our businesses from a national perspective.
When Florida’s businesses, especially small businesses, are desperately trying to claw their way out of these tough economic times, the last thing they need is to be shouldered with yet another costly and error-prone government mandate. In its current form, E-Verify is not ready to be forced on Florida’s employers and should remain a voluntary system.