February 28, 2008 - On February 28, 2008, in cooperation with the Society for Human Resource Management (SHRM), U.S. Representative Sam Johnson (Rep.-Texas) and others introduced the New Employee Verification Act of 2008 (NEVA) which would replace the existing I-9 employment verification process with a mandatory electronic verification system for all employers.

NEVA would require all employers to use their state’s “new hire” reporting process to verify a new employee’s employment eligibility. The system would confirm a person’s employment eligibility by checking his/her vital information against databases maintained by the Social Security Administration (SSA) and the Department of Homeland Security (DHS). As an alternative to the electronic confirmation, NEVA would offer employers the option of using voluntarily-provided biometrics for employment verification. Bill supporters indicate that the goal of the biometric alternative is to cut down on the use of fraudulent driver’s licenses and social security cards.

NEVA would eliminate the I-9 Form and use of the E-verify system, replacing the existing requirements and tools with a new electronic employment verification system. The NEVA program would require the federal government to check the employer’s employment verification information against the SSA and DHS databases within three days of receipt and to notify employers of any resulting discrepancies. Employees would have to rectify any discrepancies within ten days of being notified of a problem in order to establish continued employment eligibility. The proposed legislation, however, contains a safe harbor provision that would protect employers using NEVA’s electronic verification program from liability under state or federal law where the employer relied on the data provided by the government’s databases.

Notably, the bill contains a provision stating that it would preempt any state and local laws that contradict the NEVA requirements or process, including state laws requiring enrollment in the E-verify program in order to obtain government contracts or business licenses. NEVA also seeks to increase employer fines for employment verification related violations, in most cases doubling existing fines and in some instances increasing fines by four times. Finally, NEVA places liability on employers only for direct employees, not those of their subcontractors.

BAL COMMENT: The provisions outlined in NEVA would provide a universal employment verification system that would eliminate a significant amount of the confusion arising from diverse state laws. The time frames outlined in the NEVA proposal, however, would drastically shorten the time frames available to employees to correct discrepancies.