State legislators intent on cracking down on the hiring of undocumented workers could be embracing a system so fraught with errors that some critics say it actually hinders employers who use it to check the eligibility of new hires. Employers could also be caught up in a constitutional legal battle in the process.
At least half a dozen bills have been filed in the Texas House mandating the use of the federal electronic employment verification system known as E-Verify. U.S. Citizen and Immigrant Services manages the system, which compares the information potential workers submit to an employer on their I-9 — a federal document that collects employment-eligibility information — to records maintained by the Department of Homeland Security and the Social Security Administration.
The system is required only for employers with federal contracts, but the federal government says volunteer participation is growing at the rate of approximately 1,000 new businesses signing up every week, adding to the 225,000 already using it.
The legislation filed so far would mandate wider use of the system in Texas, mainly for businesses that receive state and federal grants or subsidies. House Bill 582, authored by by state Rep. Angie Chen Button, R-Richardson, would require businesses that receive certain public subsidies to use the system. HB 140 by state Rep. Jodie Laubenberg, R-Parker, and HB 202 by Rep. Burt Solomons, R-Carrollton, would require state contractors to enroll. HB 178, by Jim Jackson, R-Carrollton, would require state government agencies and departments to use the system, while HB 601, also by Jackson, would require use of E-Verify by any "governmental entity" including any political subdivision of the state, like a county or city government or school district.
Some business leaders argue that mandating wider use is inherently unconstitutional because immigration law is the jurisdiction of the federal government alone — a matter now before the U.S. Supreme Court — while others point to serious flaws in the E-Verify system.
"A difficult process"
Before she was a lawmaker, state Rep. Patricia Harless, R-Spring, was in the automotive business, which she said is often viewed as lax in its hiring practices. She volunteered her business, which sells and repairs cars, to participate in E-Verify as a defense.
“I wanted to see how it worked. I am in the car business, and a lot of times we are targeted as saying we hire illegals, so I wanted to have the documentation,” she said. “Of course, being in the political environment, I just wanted to be above-board.”
How she and her colleagues who are also business owners or employers decide how to vote on the issue will be heavily influenced by their experiences, not necessarily their party loyalty. Harless said she is tentatively supportive of the intent of the legislation. But she has encountered several problems with E-Verify — even with details as seemingly minor as a hyphenated name — that have led her to question its usefulness.
“I just have to see what the mandates are,” she said. “It is really difficult for an employer, and it is really difficult to get the [hiring] process checked.”
She has seen applicants she thought were legitimate get flagged and others she’s had doubts about pass through. Getting a problem corrected could take days, she said.
Her complaints are backed up the government, which has acknowledged for years the system is flawed. A report last month by the Government Accountability Office, the investigative arm of Congress, found that although E-Verify has improved, it still contains numerous flaws.
“If an authorized employee's name is recorded differently on various authorizing documents, the E-Verify system is to issue a TNC [temporary non-confirmation] for the employee,” states a report summary. “Because such TNCs are more likely to affect foreign-born employees, they can lead to the appearance of discrimination.” The accountability office touts gains made to improve the system, including the increase in the number of databases queried through E-Verify. That helped lead to the authorization of more than 8 million newly hired employees last year. But the system is still susceptible to identity theft and employer fraud.
Freshman state Rep. Paul Workman, R-Austin, also knows the challenges — and the suspicions — associated with his industry, the construction business.
“The concept of E-Verify is fine. The practice of E-Verify, however, is not so fine. There are a number of issues,” he said. “Are there illegals out there working in the construction industry? Yes, probably so. But I believe, at least in the commercial market, that most people are following the law as it relates to their hiring practices. But we’ll just have to wait and see what these bills look like and see how they impact our economy.”
Jackson, one of the legislators promoting increased use of E-Verify, acknowledged the concerns and said there can be room for improvement. In fact, he said, he is crafting legislation that would only require that a company or a government use E-Verify or forgo any state revenue or state government contracts. But bills can be tweaked, he said, to make sure employers aren’t held accountable for a faulty system.
“We intend to hold harmless those people that use it. You are not liable if you use it. You are only liable if you don’t use it,” he said. “That is what our intent is going to be, and if it’s not made clear, we will try to make it clear in committee with amendments.”
The U.S. Supreme Court
Even if Texas moves forward with any form of mandatory use of E-Verify, the legislation could still face legal challenges. A case currently before the U.S. Supreme Court, Chamber of Commerce of the United States v. Whiting, could determine whether states are allowed to mandate use of the system. The Legal Arizona Workers Act, passed in 2007 and signed into law by then-Arizona Gov. and current Secretary of Homeland Security Janet Napolitano, is far more expansive than the proposed Texas legislation. It requires that all employers in Arizona use E-Verify. Those who do not comply risk losing their business licenses. Opponents of expanding E-Verify argue that Congress prevented even the federal government from making E-Verify mandatory for all businesses and governments.
During a conference call with reporters last month after oral arguments were heard, David Selden, a Phoenix attorney for U.S. Chamber of Commerce, which opposes the law, said the most important argument under consideration is whether state and local governments are allowed to pass their own immigration-related laws and impose their own penalties by taking away the business licenses of those in violation.
“The question is whether we have one federal immigration law that applies in all 50 states that is enforced by the federal government and is applied the same way,” he said, “or whether every state jumps in” with its own policies. “Under our constitution, it says federal law is the supreme law of the land. The question is then what will be the law for immigration.” The decision could come down to whether the court decides that federal immigration law preempts state or local laws.
Selden said the federal Immigration Reform and Control Act, passed in 1986, generally preempts state laws that impose civil or criminal penalties for employers who hire undocumented workers.
“Then it has a little phrase that states in parenthesis 'except for licensing and similar laws.' Those are the magic words,” he said. “The question then is, is the Arizona law and other laws being passed around the country that would take away business licenses — are those licensing laws or are those immigration laws?”
Bill Hammond, the president and chief executive officer of the Texas Association of Business, said the Constitution speaks for itself. The association opposes expanding the use of E-Verify.
“We consider immigration to be a national matter and renew our call on Congress to pass comprehensive immigration reform,” he said. “We think and we hope that the Arizona bill will be declared unconstitutional by the Supreme Court because it is unconstitutional.”
E-Verify does nothing to address more important employment issues like identity theft, Hammond said.
“Our first choice is for the [Texas] Legislature to leave this issue alone and perhaps pass a resolution or two memorializing Congress to get off the dime and pass a [comprehensive immigration reform] bill," he said.
Though they don't necessarily agree on how, lawmakers do agree something needs to be done soon.
"People are saying that [we] shouldn't be rewarding [undocumented immigrants] by giving them jobs. It's tough," Workman said.