Compliance Update - E-Verify Status - FAR Clause in Federal Contracts

After September 8, 2009, keep an eye open for new contract language (Federal Acquisition Regulation E-Verify Clause 73 FR 67704) requiring the use of the E-Verify program in all federal contracts over $100,000 with a performance period of 120 days or longer. Contracts that include commercially available off-the-shelf (COTS) items are exempt. The language also covers subcontracts for services or construction over $3,000, if the prime contract includes the clause.

Once you have entered into a contract with this new language, you will have 30 days to enroll in the E-Verify program. You will need to use E-Verify to verify employment eligibility for all new hires working in the United States, as well as, existing employees working on government contracts. An “employee assigned to the federal contract” is defined as any “employee hired after November 6, 1986, who is directly performing work in the United States under a contract that includes the clause committing the contractor to use E-Verify.” An employee who does not perform substantial duties under the contract, such as support, indirect, or overhead personnel would not be considered as working under a federal contract.

Note: You will not need to use E-Verify until you have entered into a new contract or modified or amended an existing contract with this clause on or after September 8, 2009.

If you have not already enrolled in E-Verify, you have 30 days from the date of the contract award or modification/amendment to enroll and then 90 days from that date to start verification queries for existing employees. After the 90 day phase-in period, you will have to verify the employment eligibility for all newly hired employees within three business days after their start date.

Under the rule, if your contract includes the E-Verify clause, you may choose to run your entire workforce through E-Verify. However, as stated above you are only required to use E-Verify for new hires and existing employees assigned to a government contract. Also, employees with U.S. Government security clearances of confidential, secret, or top secret do not need to be verified.

The following types of government contractors are exempt from the rule and only need to use E-Verify on new and existing employees assigned to the covered federal contract with the E-Verify clause.
§ Institutions of higher education,
§ state or local governments
§ government of a federally-recognized tribe, or
§ a surety performing under a takeover agreement with a federal agency do

Even with the use of E-Verify, you must continue to complete and retain I-9 Forms for each newly hired employee. The E-Verify program must be used for the entire duration of the contract.

In order to prepare for the September 8th effective date, you may want to do the following:
§ identify any existing contracts that are anticipated to be amended or modified after September 8th;
§ identify any anticipated new contracts in excess of $100,000;
§ identify all current employees who will be subject to the Rule; and
§ develop or modify policies and procedures associated with the E-Verify and I-9 process.

For more information about the E-Verify system, visit the USCIS FAQs:
http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=cb2a535e0869d110VgnVCM1000004718190aRCRD&vgnextchannel=75bce2e261405110VgnVCM1000004718190aRCRD

The foregoing has been prepared for the general information of clients and friends of eQuest and Workplace Dynamics LLC. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel. If you would like to contact Workplace Dynamics they may be reached at www.workplace-dynamics.com.