Recently in Texas, there has been plenty of confusion over who should be using E-Verify, and what will happen if they don't. One agency demanded clarity on the vexing approach to employment authorization verification requirements in the Lone Star state.
In late 2014, then Texas Governor Rick Perry issued an executive order recommending that state agencies use E-Verify to ensure new hires' authorization to work in the U.S., according to The Texas Tribune. However, Perry didn't include much detail in regard to punishment, or exactly which agencies or contractors should use the employment eligibility verification system. At the time, the move was seen as an effort to fight back against illegal immigration - a prominent issue in the border state.
"The E-Verify system has been improved, it's been streamlined and it currently is the most accurate and efficient way to check a person's legal work in the United States," Perry said at the time, according to The Texas Tribune. "Though any steps taken at the state level must be backed up by a real federal commitment to fixing a broken system."
Another attempt at clarifying E-Verify rules
Last September, state Sen. Charles Schwertner, R-Georgetown, attempted to codify a more expansive E-Verify requirement with Senate Bill 374. However, that legislation also created more confusion than it did clarity on who should use the employment eligibility verification system and what the punishment would be for violators. Schwertner's bill mandated E-Verify for state agencies and public colleges. However, it did not explain which department would oversee the requirement and noncompliance would be treated.
When Gov. Greg Abbot signed SB374, the Texas Department of Transportation commented on potential overlaps with Perry's executive order.
"Currently, TxDOT complies with both [the law and Perry's mandate]" Veronica Beyer, a TxDOT spokesperson, told The Texas Tribune in an email. "In order to resolve any potential conflict between the two, we've been planning to seek an opinion from the Texas Attorney General on this issue and will do so soon."
TxDOT asks, 'Which rule do we follow?'
As a result of the two separate attempts to introduce E-Verify to Texas businesses, there are plenty of questions surrounding the employment authorization confirmation program. Now one state agency wants them answered, Law360 reported. TxDOT asked for an explicit explanation of how state agencies should approach government subcontractors and contractors - should the open an E-Verify case for them, or is that not necessary?
"The safe route would be to open up cases for contractors and subcontractors."
Senate Bill 374 did not address the employment eligibility verification requirement for contractors and subcontractors performing work under a contract for services with executive agencies," Joe Weber, TxDOT executive director, explained in a letter to the state attorney general's office.
Weber had two specific questions in his letter. First, he wants to know if SB374 supersedes former Gov. Perry's 2014 executive order. Second, he asked the state attorney general's office whether state agencies are required to open E-Verify cases for contractors and subcontractors.
Staying safe for state agencies in Texas
For now, the safe route would be for state agencies to open up cases for contractors and subcontractors, as well as new hires. This would ensure that they're covering all the bases, whether they have to or not. There's no such thing as being over compliant, but it's very easily to slip up and violate E-Verify of Form I-9 regulations. That's why it's crucial the right tools are in place to ensure compliance, and hiring professionals are educated on what the law requires of them.
While state laws may sometimes be confusing, overlap with each other and seem to contradict federal regulations, it is still up to employers to remain sure they're following best practices when hiring. If the law is unclear on hiring requirements, it could be helpful to reach out for legal assistance. Clarifying what the government's stance is, rather than taking a chance, is always the best bet to avoid a penalty for noncompliance.