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The Retail Employer

The Retail Employer September 2009

USCIS Reminds Federal Contractors that the E-Verify Rule Goes into Effect Sept. 8, 2009

Report from David E. Nagle, of Jackson Lewis LLP

The U.S. Citizenship and Immigration Services has reminded federal contractors and subcontractors that effective September 8, 2009, they must use the E-Verify system to verify their employees’ eligibility to work in the United States if their contract includes the Federal Acquisition Regulation (FAR) E-Verify Clause.

The reminder follows recent decisions of the federal courts, including the U.S. Court of Appeals in Richmond, rejecting challenges to the implementation of the E-Verify Rule.  The Rule requires federal contractors and subcontractors to use the federal E-Verify program to verify the legal status of all new hires and certain existing employees assigned to work on federal contracts. The plaintiffs have requested an emergency injunction against implementation of the Rule pending appeal of the district court’s dismissal of the lawsuit.  A decision on the emergency injunction is likely before September 8.

It is important to note that the E-Verify Rule does not require a federal contractor/subcontractor to begin using E-Verify on September 8, 2009, unless it wins a new contract(s) on or after the effective date containing the E-Verify provision or unless any of its current federal contracts are modified/amended on or after September 8 to include the provision. 

What Should Employers Do Now?

  • Determine if an existing or anticipated federal contract will be subject to the Rule;
  • Determine which, if any, current employees will be subject to the Rule;
  • Determine if any exemptions apply or can be obtained;
  • Review or create companywide E-Verify and I-9 programs, policies and procedures;
  • Institute corrective actions where needed, particularly with regard to employees with unconfirmed employment authorizations; and
  • Contact the federal contracting officer for existing contracts to find out if and when he or she intends to amend/modify the contracts.

What Should Employers Do After the Rule Takes Effect?

  • A federal contractor will not be required to begin using E-Verify unless it wins a new contract containing the E-Verify clause or unless its existing contract(s) is amended to include the clause.  Given the new Administration’s support of the adoption of the E-Verify Rule as a key plank to its immigration enforcement policy, federal contracting officers are likely to amend contracts quite rapidly by sending out a mailing stating that “your contracts numbers 1, 2, and 3 are hereby amended by the incorporation of the attached provisions”, enclosing a standard clause.  
  • Follow the applicable guidelines below if you win a new federal contract containing the E-Verify provision or your existing contract is modified accordingly on or after September 8.

A. Federal contractors not yet enrolled in E-Verify must:

  • enroll in the E-Verify program within 30 days of a contract award;
  • within 90 days of enrollment, verify newly hired employees within 3 business days after their start date;
  • within 90 days after enrollment or 30 days after the assignment of existing employees to the contract, whichever is later, verify existing employees assigned to the contract (see below if you plan to verify all existing employees); and
  • continue using E-Verify for the duration of the contract.

B. Federal contractors enrolled in E-Verify for 90 or more days must:

  • log onto your E-Verify account and update you company profile through the “Maintain Company” page to reflect that you are now a federal contractor;
  • take the online/web test/tutorial and sign a new Memorandum of Understanding (MOU) with the Department of Homeland Security (DHS) and the Social Security Administration (SSA);
  • continue verifying newly hired employees within 3 business days after their start date;
  • within 90 days after a contract award or 30 days after the assignment of existing employees to a contract, whichever is later, verify employees assigned to the contract (see below if you plan to verify all existing employees); and  
  • continue using E-Verify for the duration of the contract.

C. Federal contractors enrolled in E-Verify for fewer than 90 days must:

  • log onto your E-Verify account and update your company profile through the “Maintain Company” page to reflect that you are now a federal contractor;
  • take the online/web test/tutorial and sign a new Memorandum of Understanding (MOU) with DHS and SSA;
  • within 90 days after enrollment, verify newly hired employees within 3 business days after their start date;
  • within 90 days after a contract award or 30 days after the assignment of existing employees to the contract, whichever is later, verify existing employees assigned to the contract; and 
  • continue using E-Verify for the duration of the contract.

Which Contracts Are Covered?

  • Prime federal contracts with a period of performance longer than 120 days and valued above $100,000.
  • Subcontracts that flow from covered prime contracts whose value is above $3,000.
  • Existing indefinite-delivery/indefinite-quantity contracts for future orders if the remaining period of performance is more than 180 days and the amount of work or number of orders expected under the remaining performance period is substantial.

Which Contracts Are Exempt?

  • Contracts for commercially available off-the-shelf (“COTS”) items or items that would be COTS items but for minor modifications and related services;
  • Contracts with a value of less than $100,000;
  • Contracts with performance terms of less than 120 days; and
  • Contracts for work to be performed outside the U.S.

Which Employees Are Exempt?

  • Employees hired before November 6, 1986;
  • Employees the federal contractor already verified through E-Verify;
  • Employees granted active U.S. security clearances, or who have completed DHS background checks;
  • Existing employees of a contractor that is an institution of higher education, a state or local government or the government of a federally-recognized tribe, or a surety performing under a takeover agreement with a federal agency, who are not assigned to work on a federal contract; and
  • Employees working outside the United States.

Guidelines for Federal Contractors Who Opt to Verify All Existing Employees

  • Most federal contractors and subcontractors have the option of verifying their entire workforce, both new hires and existing employees – including those not assigned to a federal contract.
  • A contractor which is an institution of higher education, a state or local government or the government of a federally-recognized tribe, or a surety performing under a takeover agreement with a federal agency, does not have this option and must verify existing employees assigned to the contract and all new employees.
  • If your company is already enrolled in E-Verify and plans to verify its entire workforce, your program administrator must notify DHS by updating your company profile through the Maintain Company page.
  • Initiate an E-Verify query for each existing employee in your entire work force within 180 days of updating your company profile.

While the authority for the E-Verify program will sunset on September 30, 2009, it is anticipated that Congress will extend its validity under the final version of the $42.9 billion FY 2010 Homeland Security Appropriations bill (H.R. 2892). The Senate’s version of the bill (S. 1298) includes an amendment offered by Senator Jeff Sessions (R-Ala.) to reauthorize the E-Verify program permanently and impose essentially the same requirements as the Rule to take effect on September 8, 2009, i.e., it will require federal contractors to verify all new hires and existing employees directly performing federal contract work.  The House’s bill would authorize an extension for only two years.  The two bills will be reconciled in a conference committee.

David E. Nagle is the partner in charge of the Jackson Lewis office in Richmond. He may be reached at (804) 648-4077, or nagled@jacksonlewis.com. Jackson Lewis is dedicated to representing management exclusively in workplace law with 600 attorneys practicing in 42 cities nationwide. In addition to the attorneys in the firm’s Global Immigration practice, who drafted this report, Jackson Lewis has a wide-range of specialized practice areas, including: Affirmative Action and OFCCP Diversity Planning; Disability, Leave and Health Management; Employee Benefits and Executive Compensation; Labor; Litigation, including Class Actions; Trade Secrets and Non-Competes; Wage and Hour Compliance; and Workplace Safety.

Calls requesting information on the Employment Law Information Program should be directed to Preston Perrin with the Retail Merchants Association at 804-662-5500.

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Member News & Events

Powhatan Chamber of Commerce Luncheon 

Thursday, September 17

County Seat Restaurant. Networking starts at 11:30 and lunch buffet starts at 12 noon.  Lunch is only $8.00 a person. Please RSVP to 598-2636

BIZ LINC 2009

September 23, 2009, 10:00 a.m.–6:00 p.m.
Richmond Raceway Complex

BIZ LINC features an efficient way to connect with a diverse crowd of exhibitors, attendees and presenters through unlimited networking opportunities, new product demonstrations, Ignite Speed Networking and a celebrity appearance from Bill Rancic, Donald Trump's original apprentice.

FREE Admission & Parking. Visit www.GRCC.com > BIZ LINC or call (804) 783-9368 to register

Don’t miss your chance to meet Donald Trump’s original apprentice! Bill Rancic will make an exclusive appearance at BIZ LINC 2009—12:00 pm. Speaker brought to you by Arnett & Associates.

“Marketing Performance—Business Building Strategies”

September 23–24

An advance invitation for RMA members to a seminar called “Marketing Performance—Business Building Strategies” in Richmond at the Marriott West in Innsbrook on September 23-24. It is designed for small business owners interested in growing their business. (There is only room for 50 students.)

The Wizard Academy  www.wizardacademy.com located in Austin, Texas, is a 21st Century Business School. The faculty of Wizard Academy studies what gifted people do when they're feeling inspired so they can reverse engineer their unconscious methods. They teach you how to do consciously what a gifted person does unconsciously.

The Wizard Academy has now taken their seminars to targeted cities, like Richmond, billed as “Wizards on the Road”. Seven presenters from the Academy will share the teaching duties on a variety of topics in marketing, advertising and creative strategies that are pertinent to small business owners. The cost is $99 for the two day seminar (a bargain for sure).  The following website describes the course material and presenters in more detail: www.wizardsontheroad.com.

“Please take a moment to view the website and consider signing up. Make today the day that you take the challenge to grow your business. If you do sign up, I am confident you will find this seminar valuable.”
—John Marklin, Marklin Financial Services, LLC, 12257 Shore View Drive, Richmond, VA 23233, (804) 467-2182, jvmarklin@marklinfinancial.com, www.marklinfinancial.com

Tots-on-the-go to Hold Auction Benefit for ASK
(Making life better for children with cancer)

September 26th, 10:00 am–4:00 pm

Everyone is invited to help celebrate tots-on-the-go’s first year anniversary by giving back to the community.  Help us spread the word.  For more information, please visit www.totsonthego.com/HelpingASK.html

3rd Annual Ronald is Rockin’ The House That Love Built

Monday, September 28, 2009

6:00 - 10:00 P.M.  at the new Westin Richmond on W. Broad Street

Join us for  the 3rd Annual “Ronald is Rockin’ The House That Love Built” Auction and Celebration.

The House that Love Built, the slogan for the RMHC House, is our most important fundraising event of the year—an opportunity for Richmond’s community to show their support for Ronald McDonald House Charities of Richmond.

Enjoy the wide variety of cuisine options presented by many well-known local restaurateurs and caterers. Each adult ticket includes access to the open bar. Some of the participating restaurants include Morton’s Steakhouse, Buz and Ned’s, Croaker’s Spot, P.F. Chang’s, Inoteca, Weezie’s Kitchen and Nacho Mama’s.

In addition, many items will be available during a silent and live auction, last year over 100 items were auctioned off ranging from unique sports memorabilia and equipment to vacation packages and restaurant certificates to some of best locations in and around Richmond.

Tickets are $75 for one and $125 for two and can be purchased by calling RMHC of Richmond at 804-355-6517 or visiting www.richmondrmhc.org.  All proceeds directly benefit the Ronald McDonald House Charities in Richmond.

Are you worried about how the possibility of a Walmart in Powhatan might affect your small Business? "Big Box Competition" Discussion Panel

Tuesday October 6th 8–10 a.m. at the County Seat Restaurant

Offered by The Powhatan Office of Economic Department, in partnership with the Powhatan Chamber of Commerce and the Longwood Small Business Development Center.

The panel's keynote speaker will be Marc Willson, Retail Industry Consultant, Virginia Small Business Development Center Network, located at the Mason Enterprise Center - School of Public Policy, George Mason University.  The discussion will focus on the changing retail environment, including the effect of retail "big box" strategies. The panelists will examine the effects of "big box competition" on small business, including who survives, how they survive, and the overall economic impact on the entire community.  The discussion will close with questions from the audience. To register for this free seminar, call the Powhatan Office of Economic Development 804.598.5605  Seating is limited.

Powhatan Day and Pauwau

October 9 & 10

There are many activities for the weekend and all the information is on the websites—www.powhatanday.com  and also www.pauwau.com .  It will be held at the Powhatan Rescue Squad Grounds with a rain backup plan at Powhatan Jr. High School.

Crime Solvers & Crime Stoppers Celebrate 25th Anniversary

October 15th

Twenty-five years ago two volunteer organizations were formed to fight crime in central Virginia: Chesterfield/Colonial Heights Crime Solvers and Metro Richmond Crime Stoppers.  On October 15th these two organizations will jointly celebrate their 25th Anniversary with a festive dinner event at the Omni Hotel featuring keynote speaker James Comey, formerly Deputy Attorney General, and music from The Choir, made up of law enforcement personnel and nationally acclaimed singer/songwriter Susan Greenbaum.  This 6 – 9PM event is open to the public, tickets may be purchased for $50.  Sponsorships still available.  For more information contact Tim Barnett at tim@shopbarnetts.com or call 740-9773

US Equine Rescue League Needs Volunteers

The horse barn they are currently heavily recruiting volunteers for is in King William County.  It is in desperate need for individuals to feed and water the horses and muck stalls. There is a morning and evening shift available.  They can also use volunteers for booths and events.  They would be happy to have the help in getting the word out.  For more information, contact Susan White,  Director—Richmond Region, State Lead Equine Cruelty Investigator—Virginia, US Equine Rescue League, 804-402-2490, susanwhite.userl@verizon.net

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