E-Verify, the online system used by enrolled employers to verify the identity and employment eligibility of newly hired employees against records available to the Social Security Administration (SSA) and the Department of Homeland Security (DHS), is temporarily suspended. It’s a barely noticed consequence of the government shutdown, unless, of course, you happen to be one of the more than 800,000 employers enrolled in the program and are in a position to hire new employees.

Mandatory for Many

While E-Verify is primarily a voluntary program, many of the enrolled employers are required to use E-Verify for the following reasons:

• The employer has a federal contract or subcontract that contains the Federal Acquisition Regulation (FAR) E-Verify clause requiring said employer to enroll in E-Verify as a condition of federal contracting.
• The employer is required to use E-Verify by their state legislation, including those in Arizona and Mississippi (all employers); South Carolina (encouraged for all employers); Colorado, Georgia, Missouri, Nebraska, Oklahoma, Rhode Island and Utah (required for public contractors and state agencies); and Idaho, Minnesota and North Carolina (required for state agencies).
• The employer is required to participate in E-Verify as a result of a settlement agreement with a federal agency (Department of Justice, Department of Homeland Security, Department of Labor, etc.) or a legal ruling.

As the partial government shutdown hits the one month mark, employers are concerned about the impact the suspension of E-Verify will have on their contracts. During the shutdown, employers are unable to access their accounts to initiate cases or take action on, for example, tentative nonconfirmations (TNCs) for existing cases. Many such employers are defense contractors with employees about to be onboarded in the most sensitive security environments. This is a curious effect when the alleged issue keeping the government shut down is concern over immigration and its impact on national security — the very thing E-Verify is intended to address.

Employment Eligibility Verification Requirements

It is important to recognize that the suspension of E-Verify does not obviate the federal requirement to verify the identity and employment eligibility of all new hires. All employers that hire new employees during the government shutdown must complete Form I-9 for all new employees within three business days of the date that they begin working for pay. To be more specific, (1) the new employee must complete Section 1 of Form I-9 on the first day of hire, and (2) the employer must review the submitted documents attesting to identity and employment eligibility and complete Section 2 of the Form I-9 within three days of hiring.

Safe Harbor Guidelines

In an attempt to address the issues those affected are facing, DHS issued the following guidelines until E-Verify is operational:

• The three-day rule for creating E-Verify cases for new employees has been suspended for cases impacted by the shutdown.
• Extensions will be given to employees working on TNCs. The number of days that E-Verify is unavailable due to the shutdown will not be counted against the employee when working to resolve his or her TNC.
• DHS will issue further guidance about updated timelines for filing new cases and resolving TNCs when the system is operational again.
• Employers may not take adverse action against an employee because the E-Verify case is in an interim case status, including while the employee’s case is in an extended interim case status due to the unavailability of E-Verify.
• Federal contractors with the Federal Acquisition Regulations E-Verify clause should contact their contracting officer to inquire about extending federal contractor deadlines.

Other Obligations for Federal Contractors

While certain employees of the federal government who are deemed essential or critical are working without pay during the shutdown, private federal contractors must continue to pay employees who work, even if payments from the federal government are disrupted. Pursuant to the federal Fair Labor Standards Act (FLSA), state wage and hour laws, and various prevailing wage obligations, hourly employees must be paid at least the minimum wage or applicable prevailing wage rate for all hours worked in a workweek, even during a partial federal government shutdown. If the employee works more than 40 hours during the week, he or she is entitled to overtime unless the employee is exempt from the statutory overtime requirements. However, a federal contractor is not required to pay the nonexempt employees who do not work during a partial government shutdown. Employees who are exempt from statutory overtime requirements are entitled to their full regular salary for any workweek in which they perform any work, even if they work only a partial workweek due to the partial federal government shutdown; such nonexempt employees do not need to be paid if they perform no work during a complete workweek.

When the government reopens, we assure you that enforcement agencies will be hungry and eager to find out what has been happening while they were away. Remain compliant, keep accurate records, and if you encounter issues or have questions, reach out to counsel immediately.

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