What Contractors Need to Know About E-Verify and IRCA

Because proper compliance with immigration law is complex, this article should not be construed as legal advice. Those seeking counsel about proper compliance with IRCA, E-Verify requirements, the Fair Labor Standards Act, or wage and hour laws should contact an employment attorney practicing in their state. For general questions, feel free to contact the author at ctrautman@andersonandjones.com.

Mention the word “immigration” in today’s political climate and be prepared for the conversation to take any number of turns. What starts as a friendly conversation could segue into a political debate about President Obama or Donald Trump, livening up or ruining a perfectly good Easter dinner.

But regardless of opinion or political identity, immigration law—and compliance therewith—is something about which most construction professionals should be talking. It is a necessary component of any employer’s operations and it is of particular concern to construction business owners. “Am I supposed to be E-Verifying my employees now?” and “How long do I have to store I-9 Forms?” are crucial questions for contractors.

At a minimum, it is essential for construction professionals to understand the basics of the Immigration Reform and Control Act (IRCA) of 1986 and E-Verify. By now, most business owners in the construction industry are familiar with E-Verify, as well as federal I-9 forms, which must be completed pursuant to IRCA. But with immigration reform becoming a hotly debated issue in the U.S., contractors should not only be prepared to comply with existing laws, they should also pay attention to what changes the future could hold.

IRCA

IRCA, a federal statute, makes it unlawful to hire “unauthorized aliens”, which the law defines as individuals who are not “lawfully admitted for permanent residence” or not otherwise authorized by the attorney general to be employed in the U.S. [8 U.S.C § 1324a(h) (2012)]. IRCA is the statute that requires all employees and employers to complete I-9 Forms; the employer must then retain the original forms during the employment of each active employee (and for three years after employees become inactive or are terminated). The statute’s intention is to require every employer, regardless of the number of individuals it employs, to verify all employees hired after Nov. 6, 1986, are authorized to work in the U.S.

As a practical matter, compliance with IRCA likely won’t ensure all employees are authorized to work in the U.S. However, correctly filling out the I-9 Form is crucial to avoid fines and other penalties from Immigration and Customs Enforcement (ICE), Washington, D.C. Employees and employers have obligations regarding the I-9 Form, so cooperation between both sides of an employment trans- action is key. Under IRCA, ICE has the authority to inspect I-9 Forms and conduct audits to ensure employers are complying.

Common, but often innocent, mistakes are made. For example, employers often fail to check the “status” box on the I-9 form or fail to have the employee sign the form. Also, inaccurate classification of employees as “active” or “inactive” can lead to trouble for employers who have stopped maintaining I-9 forms for employees who no longer work for the employer but who are still classified as “active”. Instituting company policies on what constitutes an “active” and “inactive” employee, as well as ensuring proper completion of I-9 forms, can help prevent ICE audits and the fines that could result.

E-VERIFY

Unlike IRCA, E-Verify is not a statute but an Internet-based system that allows businesses to determine the eligibility of their employees to work in the U.S. In many cases, E-Verify will more accurately determine an employee’s eligibility to work than the I-9 Form system under IRCA. E-Verify is available to all U.S. employers free of charge by the Washington-based U.S. Department of Homeland Security (DHS) but it gene- rally is not mandatory for employers.

Although E-Verify is technically voluntary, numerous states have enacted provisions requiring most employers to use E-Verify. These states include Alabama, Arizona, Colorado, Georgia, Idaho, Indiana, Florida, Louisiana, Minnesota, Mississippi, Missouri, Nebraska, North Carolina, Oklahoma, Pennsylvania, South Carolina, Tennessee, Utah and Virginia. Additionally, pursuant to a presidential Executive Order and a subsequent Federal Acquisition Regulation rule, federal contractors—or those contractors doing business with the federal government—must use E-Verify.

Again, except in certain circumstances, enrollment in E-Verify is voluntary. Once enrolled, however, employers are required to post English and Spanish notices indicating the company’s participation in the program, as well as the Right to Work issued by the Office of Special Counsel for Immigration- Related Unfair Employment Practices, a division of the U.S. Department of Justice, Washington. These posters must be visible to prospective employees. To enroll, an employer simply needs to visit the E-Verify website and begin the process. Next, the employer enters into a written Memorandum of Understanding (MOU) with DHS and the U.S. Social Security Administration (SSA), Washington. This MOU provides the responsibilities of each party— employer/federal contractor, SSA and DHS.

BROADER ACTIONS

In recent years, President Obama and state governments have implemented changes to immigration law and policy that are impacting the construction industry. President Obama, in response to Congress not passing an immigration reform bill, announced a number of executive actions in November 2014. One such measure would allow certain undocumented immigrants to temporarily remain and work in the U.S. without fear of deportation. Because of pending litigation, this measure has not yet taken effect.

Although President Obama has attempted to prolong some immigrants’ ability to legally work in the U.S., several states have enacted legislation that could do the opposite. While the 19 states previously listed had made E-Verify mandatory for certain employers, some states have broadened the scope of situations requiring employers to use it. North Carolina, for example, had required all employers with 25 or more employees to use E-Verify as of 2013. But in October 2015, Gov. Pat McCrory signed into law a bill that requires all contractors and subcontractors on state construction projects to use E-Verify (N.C.G.S. § 143-133.3). The statute appears to require this without regard to a contractor’s number of employees, bringing North Carolina a step closer to South Carolina’s zero-tolerance policy for employment of undocumented immigrants.

In South Carolina, private employers who fail to E-Verify new hires could lose their licenses to do business in that state [S.C. Code Ann. § 41-8-10, et seq. (2012)]. The South Carolina law, and similar laws, easily could affect contractors from other states with more lenient policies; however, the South Carolina statute defines “private employer” to include any company transacting business in South Carolina, required to have a license issued by any state agency (including a business or construction license) and employing at least one person in South Carolina. Therefore, companies outside South Carolina that have a South Carolina office—or just one employee in South Carolina—likely will have to use E-Verify, which is becoming required in an increasing number of locations.

EMPLOYEE MISCLASSIFICATION

Importantly, E-Verify does not apply to independent contractors; companies that are required to use E-Verify need only verify the status of employees, not of independent contractors that contract with the company for work. This is noteworthy in light of another trending issue in the construction industry: employee misclassification. Employee misclassification occurs when a business wrongly classifies an employee as an independent contractor or vice versa. This is a violation of the federal Fair Labor Standards Act.

According to the U.S. Department of Labor’s (DOL’s) website, the DOL’s Wage and Hour Division is engaging in “strategic enforcement” to identify instances where companies are identifying workers as independent contractors even though they function like employees. Whether companies could be penalized for failing to E-Verify independent contractors who should have been classified as employees is unclear. However, it appears that eventually many employers will have to reclassify workers who are currently classified as “independent contractors” to “employees” to comply with federal contracts, state contracts or state laws that require use of E-Verify. It appears that this will inevitably result in employers being required to use E-Verify on an increasing number of workers.

Snow-retention System Is for TPO and PVC Membranes

Sno Gem Inc. introduces the Sno Barricade TPO and PVC Membrane Deck Mount Bar snow-retention system.

Sno Gem Inc. introduces the Sno Barricade TPO and PVC Membrane Deck Mount Bar snow-retention system.

Sno Gem Inc., a snow-retention system manufacturer, introduces the Sno Barricade TPO and PVC Membrane Deck Mount Bar snow-retention system. It is a membrane-coated and pre-skirted continuous-bar snow system (patent-pending) for new construction or retrofit applications.

The base plates are custom-coated in either TPO or PVC with a standard white, gray or black. Custom colors are available to match the roofing membrane. To ensure an easy installation, Sno Barricade Membrane-Coated Diamond Series System is available with a pre-skirted target patch, heat-welded directly to the TPO- or PVC-coated base plate. Installers can heat-weld Sno Gem’s target patch to the membrane of the roof, reducing labor cost on a watertight system.

Sno Barricade Systems are available in 1- or 2-inch bar size with single, double or triple bar retention. Square or round bars are offered to best match a building’s aesthetics. The Sno Barricade Plate, an accessory to the system that prevents snow and ice from sliding under the bars, is available in mill finish or custom colors.

Snow-retention System Is Aesthetically Pleasing

Sno Gem Inc. has introduced Sno Blockade, a permanent snow-retention system that is aesthetically pleasing on standing-seam metal roofs.

Sno Gem Inc. has introduced Sno Blockade, a permanent snow-retention system that is aesthetically pleasing on standing-seam metal roofs.

Sno Gem Inc. has introduced Sno Blockade, a permanent snow-retention system that is aesthetically pleasing on standing-seam metal roofs. Choose between a 1- or 2-inch bar, available in standard mill finish aluminum or painted in a powder coating or Kynar finish. Sno Blockade fastens to almost any standing-seam metal roof system, employing the company’s WaveLock technology with three points of attachment without penetration, in conjunction with the Sno Blockade clamp. To reduce melting snow and ice from sliding underneath the bar, the company offers the Blockade Plate, which is installed on the upslope side of the bar. The standard Blockade Plate width is 3 inches but custom sizes are available.

Asphalt Roofing Provides Comprehensive Weather Protection for a Luxury Condominium

Working with the unique variables of a region and its climate poses a significant challenge to roofing contractors. Installing a roof system that looks beautiful and can stand up to ice, snow and freezing temperatures takes an expertise that only comes with experience. This is the case in the snowy and picturesque mountains of Park City, Utah. The city is a winter haven for skiers who vacation there, but the extended snow and cold season can deliver a beating to a roof.

The concrete tile roof and poorly ventilated deck were causing major problems for the building owner, not to mention the residents who live and rent there. Heat was escaping through the roof, causing the snow to melt and refreeze at the eaves.

The concrete tile roof and poorly ventilated deck were causing major problems for the building owner, not to mention the residents who live and rent there. Heat was escaping through the roof, causing the snow to melt and refreeze at the eaves.


The Grand Lodge at Deer Valley Resort, a luxury condominium development at one of North America’s top-ranked ski resorts, sits at an elevation of 9,000 feet in the mountainous area. Along with the breathtaking views comes an average annual snowfall of 350 inches. As a result, the 40,000-square-foot concrete tile roof of the lodge had begun to fail after only six years of intense weather and needed to be replaced immediately.

The concrete tile roof and poorly ventilated deck were causing major problems for the building owner, not to mention the residents who live and rent there. Heat was escaping through the roof, causing the snow to melt and refreeze at the eaves. Dangerous icicles would form, and noisy chainsaws were frequently needed to cut through the ice on the 5-story building. In 2013, the owner of the condominium decided to completely redesign the roofing system. IronClad Exteriors Inc., a Sandy, Utah-based roofing company had successfully installed roofs for Deer Valley in the past and was contacted by Deer Valley Resort Management to consult on the new design.

“Due to insufficient insulation and poor ventilation on the existing roof, ice dams were forming, tiles were cracking and the roof was falling apart,” says Eric Kircher, owner of IronClad Exteriors. “There was an architect involved in redesigning the roof … . I was asked to take a look at the design, and I recommended an asphalt shingle roof instead.

Kircher advised that a full asphalt roofing system with proper insulation and moisture protection would be able to withstand the harsh weather of the ski resort.

“Asphalt was the ideal material for the reroof for reasons that involve aesthetics, safety, and the long-term health and viability of the roof,” he notes. “I recommended a shake style because it really fit the architecture and look of the roof while being able to protect the building and residents from the weather conditions.”

Over the span of six months, IronClad Exteriors tore off the tile roof and installed a system they had used many times to help homeowners in the area protect their homes from ice and snow.

Over the span of six months, IronClad Exteriors tore off the tile roof and installed a system they had used many times to help homeowners in the area protect their homes from ice and snow.

Installation

Over the span of six months, IronClad Exteriors tore off the tile roof and installed a system they had used many times to help homeowners in the area protect their homes from ice and snow. FlintBoard ISO NB (Nail Base) Composite Polyisocyanurate/OSB Roof insulation was installed over the plywood deck, followed by a 3- by 10-inch fascia board. WinterGuard HT advanced waterproofing underlayment and DiamondDeck High Performance Synthetic Underlayment were then added to provide important moisture resistance. Finally, the Presidential Shake TL asphalt shingles provided a beautiful look that matched the lodge’s breathtaking surroundings. The project was completed in November 2014.

The Grand Lodge’s new asphalt roof also contains a unique feature that sets it apart in form and function. IronClad installed 11,000 copper snow guards that offer another layer of weather protection. Snow freezes around the copper pieces and keeps it from sliding down the roof to form dangerous ice dams at the eaves. Lodge residents no longer have to walk underneath potentially hazardous icicles or listen to the sounds of manlifts and chainsaws that are used to remove them.

“The roofing system we designed had the unique ability to withstand that type of cold environment,” Kircher notes. “There will be no heat loss contributing to ice and snow on the eaves, and the insulation protects the interior of the lodge. These are high-end condominiums with finished ceilings and no attic space at the top where you can put more insulation, so the insulation had to be installed on the existing roof deck to prevent ice dams.”

The installation process went smoothly despite the challenges brought on by Park City’s weather. Snow can begin to fall as early as September and lasts through the spring, providing little time for construction projects to take place. Fortunately, IronClad had extensive experience with the roofing systems needed in Park City.

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Snow-retention System Designed Specifically for New Elementary School

Alton Hall Elementary School, Galloway, Ohio, recognized the need for snow retention and specified the Sno Barricade from Sno Gem Inc. to be attached to the standing-seam roof.

Alton Hall Elementary School, Galloway, Ohio, recognized the need for snow retention and specified the Sno Barricade from Sno Gem Inc. to be attached to the standing-seam roof.

Providing a safe and healthy environment for students is clearly a high-ranking consideration in the construction of an elementary school. Architects for the Alton Hall Elementary School in Galloway, Ohio, recognized the need for snow retention and specified the Sno Barricade from Sno Gem Inc. to be attached to the standing-seam roof.

“We specified the Sno Barricade because of its proven durability and performance,” says Mike Parkinson, associate project manager at SHP Leading Design of Cincinnati. “We’ve used the Sno Barricade on dozens of projects. I can’t remember the last time it wasn’t on one of our projects. The system is designed specifically for each project by Sno Gem. With the design criteria, they run calculations for the project and prescribed a two-rail system around the entire roof to protect the occupants from potential sliding snow and ice.”

With a layout of the standing-seam metal roof, considering slope, length of run, panel width, annual snowfall and other factors, Sno Gem calculates the best snow-retention solution. “Every metal roofing layout is different and each one requires its own calculations,” notes Jim Carpenter, vice president of Operations at Sno Gem. “Our calculations are based on results obtained from extensive testing of our clamps.”

After receiving the design criteria, Sno Gem ran calculations for the project and prescribed a two-rail system around the entire roof.

After receiving the design criteria, Sno Gem ran calculations for the project and prescribed a two-rail system around the entire roof.

For the Alton Hall Elementary School, the Sno Barricade was prescribed by Sno Gem. Rush Architectural Metal Erectors Inc. of Washington, Pa., installed 1,850 linear feet of the Sno Barricade around 100 percent of the perimeter of the building. R.A.M.E. also installed the Barricade Plate on Alton Hall. The Barricade Plate is an accessory designed to hold back thinner amounts of ice and snow that could pass beneath the bar. The Barricade Plate is installed on the upslope side of the bar in the middle of the panel. It’s held in place by a tek screw, not visible from the ground. Like the Sno Barricade, the Barricade Plate is available in a color to match any roofing panels.

The Barricade Plate is an accessory designed to hold back thinner amounts of ice and snow that could pass beneath the bar.

The Barricade Plate is an accessory designed to hold back thinner amounts of ice and snow that could pass beneath the bar.

“Sliding snow and ice is a dangerous problem building owners don’t have to deal with any more because of engineered snow-retention systems,” adds Albert Rush, owner of R.A.M.E. “The Sno Barricade attaches easily and securely without penetrating the panel, so it doesn’t compromise any roofing warranties. The addition of the Barricade Plate provides peace of mind for the occupants, as well as the school district.”

A Homeland Security Program Minimizes Administrative Headaches

Lines & Lundgreen Roofing and Insulation Inc. is a small family-owned business that was started in 1947. We have grown to be the largest roofing company in Yuma, Ariz. Jonathan Lines, the general manager, is the third-generation Lines to guide this company. He is taking the reins from his father, John Lines, and uncle, Steve Lundgreen, the current owners.

Unfortunately, we all know there is a lot of turnover in construction. Having to worry about eligibility for employment is a distraction from what we do. We have an office staff of two people. How do you train two people to become experts in all the different areas a businessperson needs to be aware of nowadays? It is just impossible.

A few years ago there was an article in the local newspaper about a raid on a local business. The purpose of the raid was to check for illegal workers. The article stated there were a number of illegals working at this site, and the business would receive fines above $10,000. I didn’t want to worry about this, but we were not experts on the different documents that could be used to prove eligibility and didn’t know how to look for illegal documents. I did not want to become an expert either. I thought I was doing what was needed.

A day or two after the article appeared, one of the owners was talking to a group of employees and said we would have to check all employees for document accuracy. He was joking, but we lost a surprising number of employees that morning. They just disappeared, and we all knew why. I knew that whatever we were doing was not working. Then we were audited by U.S. Immigration and Customs Enforcement (ICE). I was more than a little uneasy as they presented their badges and realized why they were in our office.

Our audit turned out to be a positive experience. ICE agents went through each of our I-9 forms. Then they held a meeting with us. They could see we had been making an honest attempt to use appropriate hiring processes. They helped us clear up the things we were doing wrong and encouraged us to take advantage of the best employment practices available to us on the Internet.

We were using E-Verify already; E-Verify is a free Internet-based system that allows businesses to determine the eligibility of their employees to work in the U.S. We now use E-Verify for I-9 documentation, socialsecurity.gov for Social Security number verification and Arizona’s New Reporting Center to withhold child support. We are in compliance and ICE does the verification. I no longer worry about these issues, which is one less headache for me.

The IMAGE Program

Lines and Lundgreen Roofing and Insulation Inc. was the second Yuma, Ariz., employer to partner with U.S. Immigration and Customs Enforcement’s (ICE’s) Homeland Security Investigations (HSI) in a nationwide program designed to strengthen hiring practices and combat the unlawful employment of unauthorized workers. Lines and Lundgreen Roofing and Insulation was certified as an ICE Mutual Agreement Between Government and Employers (IMAGE) partner.

Lines and Lundgreen is a roofing, insulation and acoustical ceiling installation firm with 46 employees serving Yuma County and the Imperial Valley. The company’s projects range from residential roof repairs to large commercial and government contracts, such as the F-35 simulator building at U.S. Marine Corps Air Station Yuma.

As part of the IMAGE program, ICE provides private companies with education and training on proper hiring procedures, including the use of employment screening tools, such as E-Verify. IMAGE-certified companies also undergo an audit of their I-9 forms to ensure current employees are eligible to work in the U.S.

Employers interested in learning more about IMAGE membership should visit its web page.