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Everify - To Pay Or Not To Pay? What To Do If Your New-hire Doesn't Pass Everify...

Apr 1, 2008
To stay compliant with the Arizona Legal Workers Act that took effect January 1st, 2008, employers have adjusted their standard operating procedures to comply with the law requiring them to verify work eligibility through the EVERIFY system.

But what about when an employee has worked several hours or even days before receiving a confirmation from the electronic verification system? With so many laws that protect the employee from discrimination or adverse action, it is sometimes unclear what to do to both comply with the law and respect the employee.

The time it takes to process a new hire through the EVERIFY system usually takes only a few minutes to receive a confirmation. However, if there is a discrepancy between the name of the employee and the employee's social security number, the system will display a 'Tentative Non-Confirmation'. This does not necessarily mean that the employee is not eligible to work, however. Several items can cause a Tentative Non-Confirmation. The most common is, typo or incorrect data entry. For example, say a new hire completes paperwork and lists the name as Jonathan Quincy Doe. In some cases, the passport or driver license could show the name as Jon Q. Doe or Jonathan Doe. Entering the name this way could cause the system to respond with a Tentative Non-Confirmation. At this point, the employee, John Doe, is notified that he has up to 8 days to contact the Social Security Administration to correct the error. This is where many employers fear they are non-compliant. They worry that if they were visited by the Immigration and Customs Enforcement agency an John Doe is an active employee, they will be penalized. This is not so. As long as the employer keeps their documentation in order and tracks the EVERIFY process to the day, the employer is considered compliant with the law.

However, some employers who do not properly educate themselves on the laws surrounding the Legal Arizona Workers Act are erroneously terminating an employee at the first sign of Tentative Non-Confirmation. This is a violation of the employee's rights. Furthermore, by not paying the employee for hours worked, the employer is further falling into violation territory with the Wage and Hour division of the Labor Board.

Arizona wage & hour laws mirror the Federal Fair Labor Standards Act which sets guidelines as to how to pay employees properly, mandating that all employees must be paid for all time worked.

When a new employee completes the I-9, they are swearing that the information provided is true and correct and furthermore, that they are authorized to work in the United States. At this point, the employer must give them that benefit of the doubt until it can be proven otherwise.

That being said, you must treat the employee the same way you treat every other active employee without exception. This includes pay. If EVERIFY tells you that there is a discrepancy with your new-hire and a Tentative Non-Confirmation Notice is issued, the employee has up to 8 days to correct the discrepancy with the appropriate agency. During that time, you must treat this employee the same way you would any other active 'verified' employee meaning the same training, orientation, work assignment, etc. You must presume that the employee is 'authorized' until you can prove that they are not with an EVERIFY FINAL NON-CONFIRMATION.

The U.S. Citizenship and Immigration Service (USCIS) is not out to shut your business down. Their primary goal is to educate companies to avoid breaking the law. Your best bet is to follow the guidelines, use EVERIFY, keep your I9 records in as fair order as possible and stay consistent with how you process new-hires.

In many cases, a simple phone call to your HR office will clear up any doubt as to whether or not you are staying between the narrow lines of the immigration laws.

Compliance with this new law can involve some work, but with a little knowledge, you can keep yourself, and your business, out of trouble.
About the Author
By John Rico, Director of Human Resources for http://www.nationalpeo.com/ - National PEO, LLC, A Scottsdale, Arizona Based HR and Payroll Company who uses EVerify for new hires as required by law. Please link to this site when using this article.
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