Yesterday we all got the following university-wide message from the Chair of the Faculty Senate (who happens to be a law school colleague):
Colleagues:
I’m writing to alert you to the importance of participating in the upcoming “E-Verify” compliance program. Fortunately, for the vast majority of us, it will be merely a nuisance. For a few, it is likely to be much worse.
In order to comply with the requirements of Federal law and Homeland Security regulations, every employee (unless hired before November 6, 1986) must complete the process, which will begin in January.
1. The University will send you information on how to log in to an electronic version of Form I-9. It should only take a few minutes to complete the form.
2. Thereafter, you will need to contact the HR representative assigned to your school or department, and present appropriate documentation. [HR will send out an e-mail shortly that lists the documentation you will need.]
3. The information submitted is then transmitted to the government for verification. If the information submitted matches federal records, the process is over.
4. If the information submitted does not match federal records – and according to press accounts, there are many flaws in the government’s data base – you have to start the process of resolving any mismatched information within eight “federal working days.” The administration will provide you information at the time with respect to the agency or agencies that must be contacted.
By law, the University must terminate employees who fail to participate, or who fail to resolve an inconsistency, even if the inconsistency is the government’s fault. Being tenured is irrelevant; federal law prevails over your contract rights. [No re-tenuring process is necessary for those who have to be terminated for this reason but subsequently resolve the problem. However, you could be out some salary.]
What you can do to minimize problems:
- If you are a US citizen, find your US passport, which is by far the easiest way to prove you have the right to work, and bring it up to date if necessary. If you don’t have a passport, obtain your birth certificate or Social Security card, and make sure your driver’s license or other government-issued photo ID is valid.
- If you aren’t a U.S. citizen, make sure your relevant “green card” or visa paperwork is up to date and in your possession.
- Let your Department Chair or your Dean know if you are going to have an extended absence during January, e.g. away doing research, visiting at another university, on sabbatical, etc.
We would worry about anyone who did not find this process at least a little bit irritating. The government’s rules, which may be OK for a typical workplace, are wholly out of tune with the way a university operates. Fortunately, from our conversations with the University administration, it is clear they are working hard to make the best of a bad situation.
We’ll try to deal with any concerns you may have. But the real experts are Bill Tallman, (305) 284-3386, [email redacted] for Coral Gables/Marine Campuses or Elizabeth Coker, (305) 243-6551 [email redacted] for Miller School of Medicine. They have told us they would be happy to answer any questions or help deal with any problems you may have.
Best regards for the Holiday season,
Rick Williamson
Chair, Faculty Senate
For most employers the e-verify program is both optional and limited to new hires— but employers who are federal contractors and subcontractors, including those who receive American Recovery and Reinvestment Act funds, are required to participate and to check all but their post-Nov, 1986 hires. (A date that I imagine has something to do with the effective date of the Immigration Reform and Control Act of 1986 (IRCA).) Our med school is getting some ARRA money; the University has got substantial federal funds covered by the FAR as well. So we are all swept in to the giant employee database. Except that we didn't have to be.
The University's position is somewhat more self-serving than it seems. The University did have a choice. It could either subject us all to E-Verify, or it could have availed itself of the exception available to universities, and only subject to E-Verify those members of the faculty and staff who work on covered contracts and grants.
That's right: the University is NOT required by law to make us all go through this procedure, see 48 CFR § 22.1802 (b)(2)(i), 73 Fed. Reg. 67704 (Nov. 14, 2008) (“the contractor may choose to verify only new hires assigned to the contract if the contractor is— (i) An institution of higher education (as defined at 20 U.S.C. 1001(a));”), although it is true that once the University elects to do the whole staff we as employees have no choice in the matter.
The problem from the University's point of view is that there are a lot of people working on covered projects (especially in the Med School), the University's obligations are ongoing, and the cast of characters involved in covered projects is constantly shifting. Administratively, it is simpler and cheaper for the University to do everyone now, and as they are hired in the future, then it would be to track people every time in order to confirm their eligibility every time they get involved in a government-sponsored research project.
So, once the University has elected not to avail itself of the exception for institutions of higher education, we are caught by the rule about stopping our paychecks unless you comply:
If the information submitted does not match federal records – and according to press accounts, there are many flaws in the government’s data base – you have to start the process of resolving any mismatched information within eight “federal working days.” …
By law, the University must terminate employees who fail to participate, or who fail to resolve an inconsistency, even if the inconsistency is the government’s fault. Being tenured is irrelevant; federal law prevails over your contract rights. [No re-tenuring process is necessary for those who have to be terminated for this reason but subsequently resolve the problem. However, you could be out some salary.]
This is unsavory in principle, and probably in practice too. And the practice matters. Just how cross we should be about the University's decision to put institutional convenience (and budget) ahead of its empoloyees' convenience (and in some cases budget) depends in large part on how well or badly the E-verify system works, and on how many people end up being unjustly put on involuntary leave without pay while their paperwork is sorted out. My guess is that snafus are almost inevitable, especially in the early days of the system. It will be up to the University to take care of any people caught in a bureaucratic trap at least partly of the University's making.
At least you only have to start the appeals process in eight days — I doubt it would be possible to end it that quickly in many cases.
[Is the emplyoment right the sort of right that a person wrongly denied a salary as a result of this government action under E-Verify could claim was a 5th Amendment “taking”? If the employee provided the right evidence but it was ignored, would that not be a Due Process violation? I think it would. The more difficult questions is whether it would it be an actionable violation under the current highly narrowed Bivens jurispredence of the Supreme Court. Maybe not — and if so, this serves as a further demonstratation of just how flawed that jurisprudence has become.]
