EMPLOYMENT LAW ALERT
Verifying Employment Eligibility without E-Verify

Since the start of the government shutdown that began on December 22, 2018, E-Verify and E-Verify services have been unavailable for use by employers. E-Verify, which is mandatory in some states (it is not mandatory in Massachusetts), is a federal program where employers, through the E-Verify site, can check work eligibility for prospective new hires.

What should employers do during the outage?

• You don't currently use E-Verify: If you don't currently use E-Verify, the outage obviously won't impact your hiring operations. Continue to verify identity and employment authorization through the form I-9 and associated supporting documents.
• You currently use E-Verify by choice: If you operate only in states, or are currently hiring only in states, that do not require E-Verify, you can continue hiring operations and remain in compliance with the law by verifying identity and employment authorization through the form I-9 and associated supporting documents. Once E-Verify becomes available again, you could retroactively enter the I-9 data for any employee hired during the shutdown. If, at this later date, you learn the employee is not authorized to work, you could take adverse action at that time.
• You are obligated to use E-Verify based on your state(s) of operation: You have a few choices, each of which has a varied level of risk and impact to operations.
  1. Pause all hiring practices until the shutdown ends and E-Verify is available. This option poses no legal risk but may be operationally infeasible.
  2. Pause some hiring practices until the shutdown ends and E-Verify is available. Maybe you elect to only hire for certain critical positions and freeze all non-critical positions. There is some risk of non-compliance if the hires occur in states where E-Verify is required, but this is more feasible operationally.
  3. Continue all hiring practices following the three-day rule for I-9s and entering data into E-Verify as soon as possible once the system is available. Here, there is little to no operational impact. But, there is some risk of legal non-compliance as certain state laws require that employers use E-Verify and that they enter data into the system within three days of the employee's date of hire. So, non-entry into E-Verify is a violation of state law. However, the Federal Department of Homeland Security has indicated that during the E-Verify outage, its policy that data must be entered with three days will be suspended, meaning retroactive entry is permissible.

Additional important notes:

• If an employee is currently in a TNC status, they will have additional time to resolve this status. According to https://www.e-verify.gov/e-verify-and-e-verify-services-are-unavailable, "the number of days E-Verify is not available will not count toward the days the employee has to begin the process of resolving their TNCs."
• If a newly hired employee is "in an interim case status, including while the employee's case is in an extended interim case status due to the unavailability of E-Verify" the employer may not take adverse action against that employee.

If you're unsure of whether E-Verify is required in the states in which you operate, or if you'd like specific guidance as to how to minimize legal risk and operational impact, please reach out.