As more employers are being forced to use the federal government’s E-Verify system to check the authorization of new hires, HR pros are asking one serious question: Are there any legal risks involved in participation?

First, the good news: The Department of Homeland Security recently assured employers they wouldn’t be held liable if they use E-Verify correctly, and an undocumented worker gets hired anyway.

For example, the worker may be using someone else’s name and social security number — the system won’t know something’s wrong, since it will just verify that the name and SSN match.

In those cases, says Homeland Security Secretary Micheal Chertoff, the company will not be punished — employers are only liable when they knowingly hire unauthorized workers.

Using E-Verify the right way

So if companies get some protection when they use E-Verify correctly, how can HR pros make sure the tool’s not being used the wrong way?

Here are the big E-Verify rules companies must follow, according to the DHS:

• Notify potential hires — Participating employers must post signs at their hiring sites — in English and Spanish — informing potential employees that they use E-Verify. Notices from the DHS are available in the “Online Resources” section of E-Verify.
• Verify new hires only — The system cannot be used to check the authorization of current employees or to pre-screen potential hires before an offer is made. Verification must take place after an employee fills out an I-9 and no later than three days after his or her start date.
• Use it consistently — E-Verify must be used for all new hires. Checking on specific people because a manager’s suspicious about their immigration status is one easy way to end up with a bias claim.
• Don’t act too quickly — If a name and SSN don’t match, you will get a Tentative Nonconfirmation (TNC) — and the key word is “tentative.” Employees must be notified about the TNC as soon as possible, and they have eight business days to resolve the discrepancy by contacting the Social Security Administration. A TNC is never grounds for termination.

State law

Finally, companies should be familiar with all applicable state and local laws. Several states require companies to use E-Verify.

The laws range from mandates for all companies to rules that only apply to employers with government contracts. It’s important to know the ins and outs of the laws in your state.

Tags: Department of Homeland Security, DHS, e-verify