In an effort to keep you appraised of the most recent developments regarding Executive Order 12989 mandating E-Verify for Federal Contractors, we are sharing with you the following:

May 29, 2009 - E-VERIFY Requirement for Federal Contractors Postponed Again - Implementation Now Set to Begin SEPTEMBER 8, 2009

EXECUTIVE SUMMARY

A regulation that would require certain federal contractors to participate in the E-Verify electronic employment eligibility verification program will once again be postponed, to September 8, 2009.

The regulation is the subject of an ongoing challenge in federal court.

In papers filed today with the U.S. District Court for the District of Maryland, Department of Justice lawyers are once again seeking an extension of the government's deadline to file a response to a lawsuit challenging a regulation that would require certain federal contractors to participate in the E-Verify electronic employment eligibility verification program. The government also informed the court that implementation of the regulation, which was published late last year as an amendment to the Federal Acquisition Regulation (FAR), will now be extended from June 30 to September 8, 2009. The plaintiffs do not object to the proposed new dates and the court is expected to grant the government's request.

If implemented, the regulation would require federal contracting officials to include a clause in certain federal contracts and solicitations obligating contractors to use the E-Verify program to verify not only the employment eligibility of all new hires, but also of existing employees who will directly perform work under the contract.

The E-Verify requirement would apply to federal contracts with a performance period longer than 120 days and a value over $100,000.

Service or construction subcontracts of a covered contract would also be required to include the E-Verify clause, if the value of the subcontract is over $3,000. Contracts for items that are commercially available "off the shelf" or that require only minor modifications would be exempt, as would federal contracts for food and agricultural products shipped as bulk cargo and contracts for work performed outside the United States .

Initially, the requirement was to become effective on January 15, 2009.

Since the Obama Administration took office, the requirement has been postponed several times, most recently until June 30, 2009. Several business groups filed a lawsuit to challenge the legality of the new law, and thus far the Administration has not yet expressed publicly its position on the lawsuit or the underlying merits of the regulation.

The Federal Trade Commission will delay enforcement of the new "Red Flags Rule" until August 1, 2009, to give creditors and financial institutions more time to develop and implement written identity theft prevention programs. For entities that have a low risk of identity theft, such as businesses that know their customers personally, the Commission will soon release a template to help them comply with the law. Today's announcement does not affect other federal agencies' enforcement of the original November 1, 2008 compliance deadline for institutions subject to their oversight.

"Given the ongoing debate about whether Congress wrote this provision too broadly, delaying enforcement of the Red Flags Rule will allow industries and associations to share guidance with their members, provide low-risk entities an opportunity to use the template in developing their programs, and give Congress time to consider the issue further," FTC Chairman Jon Leibowitz said.

The Fair and Accurate Credit Transactions Act of 2003 (FACTA) directed financial regulatory agencies, including the FTC, to promulgate rules requiring "creditors" and "financial institutions" with covered accounts to implement programs to identify, detect, and respond to patterns, practices, or specific activities that could indicate identity theft. FACTA's definition of "creditor" applies to any entity that regularly extends or renews credit - or arranges for others to do so - and includes all entities that regularly permit deferred payments for goods or services. Accepting credit cards as a form of payment does not, by itself, make an entity a creditor. Some examples of creditors are finance companies; automobile dealers that provide or arrange financing; mortgage brokers; utility companies; telecommunications companies; non-profit and government entities that defer payment for goods or services; and businesses that provide services and bill later, including many lawyers, doctors, and other professionals. "Financial institutions" include entities that offer accounts that enable consumers to write checks or make payments to third parties through other means, such as other negotiable instruments or telephone transfers.

During outreach efforts last year, the FTC staff learned that some industries and entities within the agency's jurisdiction were uncertain about their coverage under the Red Flags Rule. During this time, FTC staff developed and published materials to help explain what types of entities are covered, and how they might develop their identity theft prevention programs. Among these materials were an alert on the Rule's requirements, www.ftc.gov/bcp/edu/pubs/business/alerts/alt050.shtm, and a Web site with more resources to help covered entities design and implement identity theft prevention programs, www.ftc.gov/redflagsrule. The compliance template will be available on this Web site.

Many of you are already aware of the media coverage regarding stolen identity and compromised accounts.  There has been a lot of talk by legislators about how to prevent such breaches in security and what companies should be doing to protect such personal data.  As a result of breaches and subsequent lawsuits, credit bureaus are putting out tighter restrictions as to who can access this data and what must be done to protect it once it is out of their hands.  Our credit bureau, Experian, has mandated that we send out the most recent copy of the Access Security Requirements to each of our clients that access credit bureau data (credits and socials) and to ensure its delivery.  In this effort, our Compliance Services Department has sent out a copy to each client accessing these services and is following up to make sure we get an acknowledgement for each company’s file.  As the recipient of this type of data, it is your responsibility to keep this data secure and so you should read this document thoroughly and adhere to it.  If you have questions about this document or any of your responsibilities, you should contact Jamie Haines at 727-807-2048 or Linda Thurmond at 727-807-2019

February 3, 2009

The U.S. Citizenship and Immigration Services (USCIS) announced Friday the delay of the requirement to use a new Form I-9.  This new form was originally required to be put into use starting February 2, 2009.  The new implementation date for the new form is April 3, 2009.

Until April 3, 2009, employers should continue to use the Form I-9 last revised on June 5, 2007.

December 31, 2008

Attention all Clients:

While Applicant Insight is not a law firm and does not dispense legal advice, we are informing you of recent legislation that may affect your duties and obligations regarding any New York applicant.  We have attempted below to give you a brief synopsis of the issue at hand, but strongly advise you to consult your own legal counsel about the details and your company’s obligations.

Below is the link to New York bill # SO7638A and of Article 23-A, Section 753 that was passed and signed by on 08/05/08 and goes into effect February 1, 2009. This law requires an employer that receives a consumer report to provide the subject of such report a copy of the laws governing the employment of persons previously convicted.
http://assembly.state.ny.us/leg/?bn=S07638&sh=t
  
“To a user, the person, firm, corporation or other entity requesting such report shall provide the subject of such report a printed or electronic copy of article twenty-three-a of the correction law governing the licensure and employment of persons previously convicted of one or more criminal offenses.”

The labor law is amended by adding a new section 201-f to read as follows:  201-f.  “Posting regulations on employment of persons previously convicted of one or more crimes. Every employer shall post in his or her establishment, in a place accessible to his or her employees  and  in  a  visually  conspicuous  manner,  a  copy of article twenty-three-a of the correction law and any regulations promulgated pursuant thereto relating to the licensure and employment of persons previously convicted of one or more criminal offenses.”

It is our understanding that employers are to provide a copy of Article 23-A, Section 753 (included in this communication)  before running the background check and then again if there is a criminal conviction.  

Again, we urge you to consult your legal counsel to determine your obligations under this new law.

Sincerely,

Linda Thurmond Murrell
Vice President of Operations
Applicant Insight

Federal contractors and subcontractors will be required to begin using the U.S. Citizenship and Immigration Services’ E-Verify system starting May 21, 2009, to verify their employees’ eligibility to legally work in the United States. The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council amended the Federal Acquisition Regulation (FAR) to reflect this change.

The new rule implements Executive Order 12989, as amended by President George W. Bush on June 6, 2008, directing federal agencies to require that federal contractors agree to electronically verify the employment eligibility of their employees. The amended Executive Order reinforces the policy, first announced in 1996, that the federal government does business with companies that have a legal workforce. This new rule requires federal contractors to agree, through language inserted into their federal contracts, to use E-Verify to confirm the employment eligibility of all persons hired during a contract term, and to confirm the employment eligibility of federal contractors’ current employees who perform contract services for the federal government within the United States. You can read frequently asked questions about this new rule in the link below.

SHRM recently put out the following advisory:

“Employers who conduct background checks are gearing up to comply with a final rule on address discrepancies from (national) consumer reporting agencies.  The Federal Trade Commission issued a final rule in the Nov. 9, 2007, Federal Register concerning address discrepancies under the Fair and Accurate Credit Transaction Act of 2003 (FACT Act) and identity-theft red flags. Covered entities must be in full compliance with the rule by Nov. 1, 2008. Thought the identity-theft red flag rules will be significant for entities that extend credit, the final rule’s provisions on what an employer must do upon the receipt of an address discrepancy apply to all employers conducting background checks, not just businesses extending credit.”

You can find more information about address discrepancy rules in Section 315 of the FACT Act, which amended the Fair Credit Reporting Act.  According to the FTC (Federal Trade Commission), “the final rules require users of consumer reports to develop reasonable policies and procedures to apply when they receive a notice of address discrepancy from a consumer reporting agency.” We’ve also included a document from our law firm telling you more about the ruling.