Legislation Watch: The Legal Workforce Act (HR 2164) Universal E-Verify: Bad for Both Business and Workers

On June 14, 2011, House Representative Lamar Smith (R-Texas) introduced  the Legal Workforce Act (H.R. 2164), which would require every employer in the United States to implement a mandatory employment verification system called E-verify.  (Currently, participation in E-verify is voluntary). Over a two year phase-in period, the Legal Workforce Act (“LWA”) would require all employers in the United Stated to enroll in the E-verify system which would force an employer to verify a potential employee’s immigrant status by checking his or her Social Security number against an online database to identify whether he or she is authorized to work in the United States.

Proponents tout the LWA and the mandatory E-verify provision as a common sense approach to prevent unauthorized employment while creating an efficient method to verify legally authorized workers.  However, a careful review of the current E-verify system demonstrates that it unlikely the LWA will accomplish either of these goals.

Expensive and Ineffective

In a self-commissioned report conducted by the Department of Homeland Security in 2009, the E-verify system was reported to have been successful in preventing only 46% of unauthorized immigrant workers, while 54% of unauthorized immigrant workers went undetected.   Part of the reason for E-verify’s ineffectiveness is that the system is primarily based on detecting fraudulent documentation.  Unfortunately, a significant number unauthorized workers borrow, steal, or illegitimately buy genuine documentation – these unauthorized workers will not be discovered by the E-verify system because the documents are genuine. Even when documents are forgeries or counterfeit, E-verify will not be able to detect the fraud unless the information is of a fictitious person, additionally, if the counterfeit is a replica of a document belonging to an actual person, the information (such as date of birth) must be altered and inconsistent with the original in order for E-verify to detect the fraud.  In the words of the DHS report, “it has long been clear that the current design of E-verify would not be effective in identifying unauthorized workers who present documents with information about workers who do have authorization.”  Thus the E-verify system can and will be easily circumvented if ever implemented.

The E-verify system would place additional burdens on U.S. employers by forcing them to run the E-verify check on literally every single potential employee that they want to hire.  Aside from the time and cost to U.S employers, the United States government also faces a heavy financial burden if the LWA is passed into law. According to a report commissioned by the Congressional Budget Office, implementation of the E-verify system will cost the government $40 billion over the next 10 years.  It makes little sense to spend such an exorbitant amount on a system that is so easy to bypass.  Focusing enforcement on the industries where unauthorized work is prevalent would seem to be a much more effective and cost-efficient solution than forcing every single employer in United States to adhere to a flawed verification system.

Harmful to Authorized Workers and Limited Opportunity for Redress

One of the primary methods that E-verify uses to detect unauthorized workers is by spotting multiple uses of a social security number. While such a method might make sense in theory to spot borrowed or stolen social security numbers, in reality there are several legitimate reasons why a social security number might be E-verified multiple times. For example, a worker may have more than one job at the same time, or a worker may be a recurring temporary worker who is E-verified each time, or an employer may have made a data entry mistake (very probable given that hundreds of thousands of different employers will be inputting data into the system).  In these cases, it is highly likely that E-verify will deem this person as an unauthorized worker, and the worker would be disqualified from new employment or prohibited from continued employment.

This would result in wrongful termination for many legally employed American workers and it would negatively impact the hiring of new workers. Thus E-verify is not only ineffective at spotting unauthorized workers, but it has the potential to cause authorized workers to be terminated, or create added hardships for authorized workers seeking jobs in an already difficult job market.

Furthermore, the Act specifically prohibits class action law suits to be brought as a result of wrongful termination due to E-verify error. Under HR2164, the only remedy available to a wrongfully terminated employee would be to capture lost wages or injunctive relief.

Conclusion

There is nothing wrong with legislation aimed at preventing unauthorized work; however, HR2164 is certainly not the solution because it is seeks to impose on American employers more work and more expenses in order to implement an untested and seriously flawed system which does not effectively deter unauthorized immigrant workers.  Perhaps even worse, several Senators have voiced their desire to tie passage of the DREAM Act to this mandatory E-verify legislation.  It would be a shame to implement such a large, intrusive, and far-reaching verification program in order to allow a relatively modest law such as the DREAM Act to pass.

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