VANNOY:

E-Verify what employers must know. I’m Mike Vannoy, vice President of Marketing at Asure. And this is a really important topic. So we talk a lot about compliance. One of the most common things we talk about, compliance on the show involves I nine s, which is department of Homeland Securities way of verifying your eligibility to be employed. Employers have to keep this on file, but there’s another layer here and it’s an evolving area around E-Verify. Got a great guest today. So, regular watchers of the show, you know, Mary Simmons Mary’s vice President of HR Consulting at ASURE. She’s a SHRM certified professional, and for the last eight years, she has been an adjunct professor at the New York Institute of Technology. Prior to ASURE, Mary was the director of HR Consulting for a 55 year old HR consulting firm in New York. Welcome back, Mary.

SIMMONS:

Thanks, Mike.

VANNOY:

All right. So I think this is one of those categories. Either people know what E-Verify is, they do it, they use it or they don’t, and maybe they’ve heard the term but don’t really know what it is. Can, first, can you give us a definition and I think important for people to understand the relationship with E-Verify how that is Same different works conjunction with really I nine s?

SIMMONS:

Yes, absolutely. So, E-Verify does not substitute you filling out an I nine. So an employer will complete their I nine with the, you know, new hire and then utilize this internet based system that’s operated in conjunction with the Department of Homeland Security and the Social Security Administration. So they’ve joined up to have this internet based system where the employer will run the information collected from the new employee through the system to e get it E Verify <laugh> for once they have a name that we can understand. Yes,

VANNOY:

This one’s

SIMMONS:

Not very quickly. He verified the I nine <laugh>, the the I nine information. So that, that’s basically what it is.

VANNOY:

So ridiculously oversimplify, you fill out your I nine s, you take the information that’s, which is a paper based process cuz you gotta keep these records you know, store these records and you input the data from the I nine into E-Verify and it’s electronic verification process. It’s that simple, right?

SIMMONS:

It’s that simple. And actually you don’t need to fill out a paper copy of an I nine ever. And you certainly, I’m sorry if I explained it that way. I didn’t mean to the I nine information is going right into e-Verify electronically. Yeah. So it’s, it’s that simple. It’s very, very quick process.

VANNOY:

Okay. So since it’s so simple, maybe help unpack why, why is this an important topic for us to discuss? Cuz cuz this is, this is in the punchline is spoiler alert, things are changing, right? Some states require it, right? Some don’t, some require it in cer certain circumstances, some the versus different. So let’s, let’s, let’s unpack this a little bit. Let’s maybe start with who, who requires this and who doesn’t and why.

SIMMONS:

Right? So let’s, let’s even take a step back and, and just let me, I know we’ve gone over I nine s, but just a couple little facts so that we all remember that all employers must verify the identity and employment eligibility, right. Even US citizens, right? So the I nine is not to determine whether you’re a US citizen or not, it’s to determine your eligibility to work in the US Yeah. Within three days of hire. So it is the same when you use E-Verify. E-Verify has to be completed for all new hires within three days of being hired. So if you’re going to use E-Verify, now, who should use E-Verify? Look, there is definitely whispers. And I would say it was before the, it was before the pandemic where there was whispers that it was going to be mandated for everyone, that it was gonna be a federal law.

And of course, this is driven by the federal government. That has not come to fruition, Mike, but there definitely is more states and states that you wouldn’t think that are mandating the use of E-Verify, right? And when I say you wouldn’t think we’re on, you know, we’re, we’re talking all the time and trying to educate employers, and I’m usually saying, well, you know, New York has this law and you know, California has this law. They’re not, you know, in, in, you know, the states here, right? So those states requiring the use of E-Verify Alabama, Arizona, Georgia, Mississippi, north and South Carolina, Tennessee, Utah, right? So those are states that when I’m doing an employee handbook for those states, they’re relatively easy, they’re a lot shorter than, than New York and California handbooks. But yet they’re mandating e-verify. And this is why a lot of times when we’re working with employers, they’re like, I’m in Alabama.

I’m pretty sure there’s, there’s nothing that I need to worry about when it comes to my employees. I’m like, really? Do you know anything about E-Verify? And they’re like, what? <Laugh>? So, you know, it, these laws are just coming at employers. I I was speaking to an employer this morning and I was like, it is really hard to be a business owner right now. Yeah, because these laws are coming at you so fast that I, I don’t know how anybody that doesn’t ingest it on a daily basis, like, like our team can keep up. I just don’t Yeah. Don’t see how, how they can do it.

VANNOY:

So, so you, you gave us the list of those that do where if you didn’t write down, don’t worry, we’re gonna put it in the show notes. You’ll, you’ll see, you’ll, you’ll see it in email when we follow up with a recorded version of this. Also put it if you’re watching this on YouTube we’ll put it in the show notes there for you. So that’s who’s the states that require, tell me about other states that either require in some cases or are approaching how, how, how should employers look at this?

SIMMONS:

Yeah, so it, it becomes very confusing, right? We used to say there’s federal law and there’s state law, the employee gets the better of, you know, whichever law benefits them the most. But now the municipalities, counties are getting into laws and you really see it when it comes to E-Verify. So other states like Colorado, Florida Pennsylvania, Texas, Washington have different parameters based on how many employees you have, what county you’re in, what city you’re in. So it’s not the entire state that mandates E-Verify. You really have to dig in and look into that. And then on top of it, one of the first employers that had to use E-Verify was federal contractors, right? This is a federal law. So the federal government said, gee, we wanna make sure that anybody that has a contract with the federal government, we wanna make sure that the I nine eligibility is verified by the division of Homeland Security, which is of course, federal agency. So federal contractors, Mike, were one of the first employers that had to use E-Verify years before the state started jumping into it.

VANNOY:

I, I don’t even know how, how far back does you verify? Go, do you know when it was first implemented? Thereabouts.

SIMMONS:

About seven to 10 years ago. Okay. Okay. For federal contractors. Yeah. and then the states started jumping into it, you know, at different times. But the, you know, regulation, a lot of employers don’t know their federal contractors. So this is for federal contractors with 10 contracts with the federal government of $10,000 or more. And there is some municipalities that’ll say, if you have a contract with us on a county or a state level, you have to use E-Verify. So employers, there is a database that we can look at to, to figure that out. And in addition, we of course complete affirmative action plans, which are also mandated for federal contractors. So we will tell our employers, Hey, happy to do this affirmative action plan for you, which is mandated by the federal government, but oh, by the way, are you also using E-Verify that is also mandated because you’re a federal contractor?

And we’ll walk them through that process. It’s completely free, Mike. So it is a service that I believe is good for employers to utilize, because I’ve had had auditors from the division of Homeland Security, right? Our employers will call us and go, uhoh Mary, I have an auditor at my door that, that from Division of Homeland Security that’s gonna audit my I nine s. They will call us and I’ll work with the auditor just because I know the verbiage, I know what to say and what not to say. Sure. Et cetera. And they will tell me, and I don’t know if this is true for every case, cuz I don’t work for Division A Homeland Security, but it will be easier for the employer if you’re using E-Verify. You, your I nines have already been verified by the federal government. It doesn’t mean that if you have hard copies that you didn’t put white out on it, and you’re gonna get fined for that. Right? So, you know, in hr I never say never, and I never say always, but I think E Verify may be a really good avenue for a lot of employers to utilize.

VANNOY:

So, couple couple thoughts. So first of all, the way employers need to think about this fair Labor Standards Act sets a federal minimum wage. So 7 25, but you might live in a state that has $10 minimum within that state, you might be within a county that it says 15. You might even be within a township within that county that says 17 and a quarter, right? So in, in all cases, correct, you have to follow the, the most, I’d say constricting. And, and a lot of times you and I talk about it in the, in the whatever benefits the employee the most, this one doesn’t necessarily benefit the employee, but you should consider following the law, whichever one, whichever the the smallest unit that requires you to do it. So we rattle off the states that require it. Federal contractors, yes. Certain states beyond that, it really truly depends on which state counties, municipalities. But even then, if you’re greater than X revenue, if you have greater than Y number from employees, it, it gets nuanced real fast. And so yes, you’ve gotta look up your local law to follow it. That’s, that that’s accurate.

SIMMONS:

Exactly. And correct. And that’s why we’re not gonna list it. And <laugh>, I think it’s better for employers to look into it and, and they, you know, anybody can call us and we’ll walk you through it.

VANNOY:

Yeah. And of course, this is what we do for businesses all day. Yeah. So we’d love to do that for you. But yeah. So you gotta, you gotta, you gotta verify whether you’re required to, the burden should be, we don’t wanna scare people here. This isn’t one of those things that, hey, if you don’t do it big, you know, this is really difficult to pull off. This is actually super easy, right? You’re, you’re keying in a few, it really is data elements and it actually helps you because let’s say somebody fraudulently filled out their I nine and here you’re gonna put it in the system and you’re gonna know, no, this isn’t, this is no good. Right? Right. And so this actually helps you with an employer and it’s super low effort, right?

SIMMONS:

Oh, a hundred percent. And how many things can you say these days are free and it is free for employers to use? It really doesn’t take extra time. And, you know, listen, employees can buy a driver’s license, a social security card that are fake. You know, there was fake COVID cards. I mean, I think you can get fake ID relatively easily these days. So that’s why for a lot of employers, I say just protect yourself. Just, you know, utilize this service. You know, there are penalties for non-compliance for the states that mandate it. But as I said before, and you just, you know, also gave a good example, you know, if somebody’s giving you something fake, you’re gonna catch it from the beginning, from the get go. Yeah.

VANNOY:

So that’s the legally required side of the, the argument. But because it’s value add to you as an employer and it’s free, is it your advice that everybody just does it and uses E-Verify whether you’re required to or not? I,

SIMMONS:

I, well, if you remember when we were talking about the I nine s, you know, I do have some employers in a very you know, staff heavy industry, like a retail, like a manufacturer, a restaurant, yeah. Who may have such a hard time hiring people. And I’m obviously not using names that they say, I don’t, I don’t want to use this service cuz I don’t wanna know if they’re giving me fake. I, ID Hmm. And all I’ll say to those employers as I said when we were talking about I nine s, is you can’t contract around the law, right? You can’t say, I didn’t know, I just took the id. Even though, you know, it was a, you know, pink, you know, social security card and I know that they should be blue in most cases. I think there is another color out there somewhere. But, you know, and, and kind of put blinders on. So yes, I would recommend using this service for most employers, but as I said, I, I never say never and I never say always. So there probably are some niche businesses that this may not be, you know, the best way to go depending on how you do your onboarding, how the I nines are currently being filled in. But I do think it is a helpful service for most employers.

VANNOY:

Yeah. Yeah. Okay. Very good. I do. Yeah, what about, what, what are some of the considerations that folks need to be making and what is best practices traps things to avoid?

SIMMONS:

Yeah, so, so as I said, there are penalties for non-compliance. And you know that the fines for I nine when we went over that webinar are very expensive as well. So here you have, you know, more fines if you’re not using, so for example, in Tennessee, a first time offender could be $500 penalty to the company, as well as $500 for each employee that you didn’t use E-Verify for. So do the math, Mike, you know, if you have a thousand employees, that’s a lot of money to pay in fines and then it just goes exponentially up from there. If you’re a repeat offender, it goes from 500 to 2,500. Yeah. and that’s in Tennessee, South Carolina is starts at 7,000 a thousand per per violation. And you might get your business license revoked. So they’re serious in the states that mandate it, they’re serious about the use of it.

VANNOY:

Okay. and the, I I already know the answer to this question is gonna be, it depends based on the state. But generally speaking is, is there like a, how far back in time is this? A at time of hire is a one-time event. Do you do, does any state require you go back once a year and re-verify? Or what if somebody’s been with me for 20 years on the job? Do I have to check them?

SIMMONS:

No, no, no. So let’s walk through that. Those are some really good questions. So let’s walk through some rules about E-Verify, just so we’re all on the, on the same page. It sounds really simple on the, on the surface and it is, but there are some parameters that we need to think about. So the number one thing is, is to answer your question, it is at higher. If I started using E-Verify tomorrow, I’m not going back and doing E-verify on employees that are already employed by the organization. And it’s the same rules that go for I nine s when it comes to I nine s, let’s say I gave you a social security card and a driver’s license. So my social security card doesn’t have an expiration, my driver’s license does. But that form of identification, you do not need to go back and re-verify.

You know, in two years, three years when my license expires, you took that identification, we are good. Now there are some forms of identification, like a temporary work visa that you, the employer does have to, you know, note on their calendar, put in a tickler file, whatever, and go back and verify that when that is coming up for expiration, that we reach out to the employee and re-verify that. But, but otherwise, for the I nine and for E-Verify, we’re not going back and re-verifying it is at time of hire and then we’re moving on. So it’s, it’s just for new employees. Now the other thing that I want everybody to remember is that we’re looking for consistency in all of our HR policies, right? So it, it, I hope that you guys have heard me say this cuz I probably repeat myself over and over again.

But it, it can’t be repeated enough whenever it comes to any kind of policy that we’re utilizing. We have to be consistent. So we’re not just using E-Verify for somebody that we think is not eligible or somebody that’s maybe not a citizen that that tells us they’re not a citizen or checks that off on the I nine we, if we’re using E-Verify, we are using it consistently for every new hire. Just like if I fill out an I nine for one person, you know, it is mandated for all new hires. And the same goes for E-Verify. Please be consistent. We don’t, that’s a really point ever wanna give. Yeah,

VANNOY:

Really good point cuz like if it’s a state that says, Hey, it’s required no-brainer, you do it for everybody. But if you heard us say, Hey, this is free, there’s a benefit to you to verify this, make sure that I nine wasn’t fraudulent, they are actually eligible to work in the US but you only e-verify people of color or somebody with an accent that’s discriminatory, right? So a

SIMMONS:

Hundred percent.

VANNOY:

So if you live in a, in a jurisdiction, that is not required, but you choose to do it, you gotta do it to everybody.

SIMMONS:

That’s right. Yeah. And the other thing that I wanna make sure employers understand is that this is not a screening process. Even though it can help you verify, e verify that this, the I nine information that you’ve collected from the new hire is accurate. This is done after the completion of the I nine, after you get the I nine information. So don’t interview somebody and then ask them for their information and run it through E-Verify. That is not an acceptable use. It’s after a contingent offer of employment is made. And, and that’s what your offer letter should say, right? That the offer is contingent on completing the new hire process. And part of that new hire process may be using E-Verify, but it’s certainly for every employer is completing the I nine. So that, that’s important information. Now, employers might be thinking, well, well what happens if, you know, you get a big buzzer rings <laugh>, right?

You put in the information and there’s a mismatch and that that does happen. Absolutely. So the employer must provide the employee with the information that they have been provided from the, the system, the e-verify system and ask them about, you know, why this, this isn’t writing, right? So what what I’ve had in my experience is Mike Vannoy gives me his driver’s license and a social security card as a new hire for to complete his I nine. And the system says that it’s, you know, Joe Smith’s driver’s license and it’s not Mike Vannoy. So you, that information can be printed out from E-Verify. I would go to the employee and say, gee, the driver’s license you gave me does not match the name that you gave me. Can you explain this? Right? So we have to give the employee the time to, to look at this. We provide the person with a letter issued by e verified that contains specific instructions and contact information about that being, that information being incorrect. So Mary, thankfully,

VANNOY:

Does this happen just instantly after, after you hit the submit button? Or is there a waiting period that you get Yes, the piece of mail or walk us through just how this actually plays out

SIMMONS:

That ha it happens almost immediately in most cases. So there’s not a lot of lag time that you will have, you know, to get back to the employee. Or at this point it’s still a candidate because, you know, it’s contingent on them getting through this, this process. So it happens in most cases very quickly. I have had once or twice Mike, where it says, you know, incorrect information, you know, and it gets, you know, it pauses, it won’t let you complete that process and then the information comes through. But as their database gets better and better it it’s almost immediate, okay? Now what employers need to understand is you can’t take any adverse action against the employee if they contest the mismatch, right? So they may say to you, oh, I I grabbed my brother’s driver’s license and social security number, or, you know, I grabbed this, so just wait for the, for this candidate to get back to you.

 Give them some time. I would give it, you know, you only have three days. So if you, you know, entered this for the employee on day one, we have day three for them to give you, you know, different information they have to be given a total of eight days to contact the federal agency and contest the mismatch, right? Okay. So if, if in three days they haven’t given you the correct identification, you can’t hire them, but they have eight days to put in a form with the federal government contesting that the information was a mismatch. I will tell you that in my 30 years, and of course E-Verify hasn’t been around for 30 years, but in my experience, I have not had anybody contest it. They say thank you and, and they usually leave, but I’m sure that it comes up. There definitely is identity theft out there. And I’m sure that, that it happens, right? So, so please as an employer do not ASUREme that when there’s a mismatch, do not take adverse action, which means terminating them you know, tell, you know, telling them they’re, they’re not eligible for employment, anything like that until you’ve given them those eight days to file with the federal government that there’s a mismatch if they choose to.

VANNOY:

So Mary, I had a bunch of, had a bunch of cases I’m gonna ask you about, but sounds like based on your experience, this essentially never happens. So I won’t, I won’t waste everybody’s time there, but let, let’s, so let’s say if, if, if there is just so people are prepared for it, they, they do the e-verify, they get I nine, they put it in the e-verify and it comes back that it’s a a, a mismatch. Well, as an employer, I need somebody on the job site like now, right? Mm-Hmm. <affirmative>, do I have to legally wait eight days, eight days before I could hire somebody else? Or can I put, can I put someone else on the job because I don’t want to have to wait eight days for this person to go run through their process. And then the job doesn’t exist for them after the fact. What? Can you talk me through that?

SIMMONS:

I can, and I, I will say that I love your optimism that you can find somebody in eight days. So <laugh> for any employer who can do that, tell me your secret. I I think eight days is a reasonable time. You can start interviewing, you can make, you know, arrangements that this person will replace the other person if they don’t do it. But my advice would be that you wait the eight days before you have somebody else start. Now if you’ve got a lot of positions open, then obviously you’re just gonna move on to your next candidate and, and hire that person. Absolutely. But I would give them those eight days before for you. You don’t wanna have to say to them if they settle the case with the because you know, a lot of this is gonna go through the Social Security Administration and they’re gonna get a tentative non-confirmation which is an option to go into the Social Security administration field office, which I will tell you there should be one pretty close to most employees, most candidates to go into, or they can call the us C I s and, and try to resolve this issue.

 I would wait until they go through that process because this is something that is mandated by the federal government. And, and due to that, you know, I I look at it like something that you should really be very careful about going out of scope and they’re giving me employee eight days. I would give them eight days.

VANNOY:

So basically, and practically speaking, this, this doesn’t happen. You’ve not seen it happen. So very rare, and if it does, if this is some general labor job, you got five openings and there’s 15 people at the door and the job is only for today and today only, you obviously can’t wait. The eight days you take, it’s, you’re okay, take next person in line. But if it, if there is a mismatch, if it is, if it is at all reasonably possible, give it the eight days so that you’re not acting in any retaliatory way because that maybe that person does have a legitimate mistake that can, that can be corrected. Am am I saying that right?

SIMMONS:

Yes, absolutely. Yeah. Okay. Absolutely. Like I said, I think probably identity theft would be the, the

VANNOY:

Most, right?

SIMMONS:

Obvious. you know, I grabbed my roommate’s social security and driver’s license by accident. I dunno. But it, it could happen and that’s it, it obviously has happened and that’s why the government’s giving these candidates eight days to, to contest.

VANNOY:

Yeah. Got it. Okay. What are, what are some other rules we need to be aware of?

SIMMONS:

I would say that those are the main rules that you have to be careful with. You know, some of the thing, the mistakes that have been made is human error. So you wanna be, make sure that you train your team to be very detail oriented and very careful. If you key in the information incorrectly, they gave you a driver’s license and a social security card, or they gave you their passport. It’s a lot of numbers to input. And what I’ve seen before is they input somebody inputs those numbers incorrectly and it comes up like a mismatch. So, you know, there is a way to fix that, right? So you can edit that information, but you just wanna make sure that you’re training your staff and that you’re telling them to be as careful as possible and, you know, be when that mismatch comes up, double check what you entered in as the information to make sure that it wasn’t human error on the input side that caused that mismatch.

VANNOY:

Maybe last question I have for you, Mary. You know, you and I have talked before previous shows about I nine s and I thought that was a brilliant idea. I never thought of, I was always, I always thought about just keeping your HR records together, but you re your advice is for your I nines to actually keep them separate and keep them stored separate. So if you ever have an an inspection and audit, somebody shows up and knocks on your door, Hey, let me see your I nines that boom, they’re right there and you’re opening Pandora’s box. So whatever other records for the people to explore, what, what is the artifact, digital or otherwise that is stored. Is it, is it a confirmation number? Is, do you print the confirmation page? What, what, what should employers do to prove that they, that they’re using E-Verify? Presumably DHS has their own audit trail on the back end, but what should an employer do as a best practice?

SIMMONS:

That’s a really great question that they will get a confirmation number that, that verifies that they went through e-verify system for that employee. They can print that record or store it vir virtually from that system. So you could just swing that right into a virtual i i nine folder, which, you know, whether you’re using hard copies or a virtual file of your I nines, you’re gonna have two separate folders, right? You’re gonna have one for active employees and one for terminated employees. And you can just put that right into Mike Vannoy I nine folder, right? So it’ll have got your I nine information and that confirmation. So that’s a great question.

VANNOY:

Yeah. Great. Mary, anything else? This is a, this is a relatively simple topic. We think first you gotta know if you’re legally required and you’re gonna have to look that in your local state. We’re gonna provide a list in the show notes for, for the, the ones that it is required, but based on locality, you’re gonna have to do a little bit of your own research. We’d love to do that for you if you hire us. But number two is we, we suggest everybody does it. It’s free, it’s super fast, it’s super easy in ignorance of the law is no excuse. If you got somebody who’s, who’s using fraudulent identification on an I nine better you as an employer to stay above the law and, and make sure you have a legal workforce. So there’s not necessarily a good reason to not do it. Anything else you wanna add? Right?

SIMMONS:

No, I would agree. I agree with all of those points and I think that E-verify is one of those things that just reminds us that there are a lot of assistance out there from the federal government to help us with our employees to help, you know, with the mandates that come down. But I think it’s one of those, you know, kind of things that, that is under the radar to a certain extent. And I, I only say that because when I’m talking to employers and I’m like, what do you know about the sick leaves in your state? Which when we did our, you know, 2022, 2023 updates, there’s a lot of sick leaves coming down the pipe for a lot of states, you know, 50% of the employers will say to me, yes, I know there’s a new sick leave in my state. When I say E-Verify, I’d say 90% go what? <Laugh>. So this is kind of one of those things that’s kind of under the radar, you know, it is mandated in quite a few states and municipalities. So, you know, let us help you look at the link study up or let us, you know, guide you through it. It, it’s relatively simple to use, but still, you know, could, could use some handhold held holding on our part. So I, I think that’s what I’d say about E-verify.

VANNOY:

Okay. And as always, we would love to help. This is what we do help write the employee handbooks and understand all the laws and make sure that you are compliant. So if you need help with this, don’t hesitate to call. So Mary, thanks for your time as always, and to everybody else, we will see you next

SIMMONS:

Week. Thank you Mike.