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Electronic Employment Verification Systems

By Angelo I. Amador, Esq. and Peter A. Creticos, Ph.D.

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Executive Summary

This study examines the impact of a potentially mandated electronic employment verification system (EEVS). It also looks specifically at the experimental and voluntary Basic Pilot program currently in use. The main areas covered include:

  • Verification Process: The Basic Pilot program is a multistage procedure with potential dire consequences for employers and employees, if a defined set of deadlines are not met.

  • Safe Harbor: Federal courts blocked what they viewed as infringement of Congressional and statutory authority by the DHS on other agencies, including one safe harbor provision for employment decisions.

  • Value and Limitations of EEVS as Currently Configured: Many design and institutional flaws remain within the current Basic Pilot program, including basic staffing issues in the agencies responsible for its administration.

  • Accuracy of the Verification System: No EEVS will ever be perfect, thus, the United States Congress will need to define what error rate it is willing to accept and create safeguards and remedies for those inappropriately harmed.

  • Concerns of Current Users: The main concerns include lack of safe harbors from other state and federal laws even with proper use of the system, increased costs, new administrative burdens, and new sources of legal liability.

  • Cost of a Mandatory EEVS: Using government figures for the number of employees expected to be screened and the proportion of authorized workers forced into unemployment under a mandated EEVS, the aggregate cost has been estimated at about $10 billion per year.

  • Scalability: Proper implementation of a mandatory EEVS can only be accomplished through a well planned and thought out phased-in scheme, applied only to new employees.

  • Abuse and Error: Accuracy remains a serious issue, but more thought needs to be given to other issues, such as privacy and security of the data.

  • Consequences of False Responses: Without the proper safe harbors, false responses open employers to liability for relying on the system, and employees could become unemployable for extended periods of time while they deal with the government bureaucracy to fix the errors.

  • Implications for No-Match Letters: A decision must be made by the United States Congress as to whether it is worth it to change the current primary purpose of the Social Security Administration database from one of determining eligibility for benefits to one of immigration enforcement.

  • Implications with Respect to Pending Federal Legislation: A federal law is needed with strong safe harbor provisions and broad federal preemption of state law language to prevent the creation of a patchwork of disjointed immigration enforcement laws.

  • Final Word on Structural Flaws: A mandatory EEVS is one component of the larger issue of immigration reform and, without comprehensive immigration reform, it may simply exacerbate the current situation by pushing unauthorized workers further into the underground economy.

 

Download the full report (PDF)