See below summary of the legislation introduced this week. We are clearly on our way towards a national ID system……….
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Summary of the "Legal Workforce Act"
On June 14, 2011, Rep. Lamar Smith (R-TX) introduced H.R. 2164, the Legal Workforce Act, which would mandate a new Employment Eligibility Verification System (EEVS) nationwide within 2 years.
Who must use EEVS and when must they comply?
- Mandatory for all employers nationwide in 2-year expedited phase-in. The largest employers must use EEVS within 6 months of enactment. The smallest employers with 1 to19 employees must comply within 2 years. Status quo maintained until the effective dates take effect. Early compliance mandated within 30 days for employers already required to use E-Verify.
- Recruiters, referrers and union halls (including union halls that take no fee) are required to use EEVS within 1 year of enactment.
- Agriculture: Employers using seasonal workers for agriculture or services (as defined in the H-2A program) must use EEVS within 3 years from enactment. Workers from past seasons are not deemed new hires and need not be reverified.
• Re-verification: Generally not required but reverification is mandatory for:
- All federal, state, and local government employees
- All employees with a limited period of work authorization
- Employees at certain federal and state contracts working in the U.S.
- Employees at certain critical infrastructure sites
- Employers can voluntarily choose to reverify their workforce
When must employers verify job applicants? The bill authorizes employers to make offers of employment conditioned upon final clearance by EEVS. By muddying the waters on current law which forbids any kind of pre-screening by employers this will invite employer abuse and discrimination. The bill includes no language prohibiting discriminatory practices.
Safe harbor protections for employers. Broad relief from liability from civil or criminal suit granted to employers for actions taken in good faith reliance on EEVS, unless there is clear and convincing evidence that the employer knew the employee was unauthorized. There is also relief from substantive and technical violations if timely corrected.
Penalty and enforcement mechanisms.
- Felony crime created with fines and prison time for knowing misuse of a social security number or other identification. Enhanced penalty for aggravated identity theft if committed in connection with this newly created crime.
- Ten-fold increase in fines as well as heightened penalties for employers but with a waiver for violators who acted in good faith.
Limited protections for workers. Employee remedy is limited to suit solely under the Federal Tort Claims Act or injunctive relief. Class actions are prohibited. No relief against employers.
Major expansion of SSA's enforcement duties will burden SSA and result in issuance of more compliance letters
- Multiple use of SSA numbers. SSA must send notice letters regarding employees who hold more than one job during the year if there is a pattern of unusual multiple use. SSA shall also issue notices to employers submitting one or more mismatched wage and tax statements or corrected wage and tax statements.
Blocks on social security numbers. SSA is authorized to block a social security number if it is used unusually multiple times. SSA is required to block the SS number for noncitizens whose visas have expired and other categories of noncitizens. An individual worker can block the use of his or her number if its use was not authorized.
Preemption. The bill preempts states and localities from passing employment verification laws and policies, but grants states and localities a broad exception to the preemption rule by permitting them to use business licensing laws and similar laws as a penalty for failure to use EEVS. This will invite continued state/local regulation in this area and result in diverse and likely conflicting laws.
Biometric pilot program shall be launched within 18 months of enactment that uses private sector companies that would maintain their own databases and interact with federal databases. Participation in the pilot program is voluntary for employers but mandatory for new employees hired by those employers.
More onerous documentation requirements. The bill eliminates many approved documents showing identity and work authorization.
