The recent flurry of executive orders concerning immigration, worker status, DEI programs, and federal contractors has left many organizations unsure of what they need to do to stay compliant if they have federal government contracts. Even if you are a Texas employer that is not a government contractor, your organization may be affected by executive orders concerning immigration.
At the time of writing, most of these executive orders are being challenged in federal courts. Some of them, such as the executive order rescinding birthright citizenship, were overturned due to being unconstitutional. Unless the other executive orders are overturned, your organization will need to comply with them. Here's what Texas employers need to know about the latest executive orders and how they come into play with Texas worker documentation laws.
Executive Order on Ending Illegal Discrimination and Restoring Merit-Based Opportunity
In the 1960s, President Lyndon B. Johnson signed Executive Order 11246, which established nondiscrimination and affirmative action provisions for federal contractors to ensure government contracts went to firms with more diverse workforces.
The latest executive order overturns it, proclaiming that federal contractors now cannot promote diversity, equity, and inclusion (DEI) programs if they violate federal anti-discrimination laws. Federal contractors also are not required to engage in affirmative action measures by balancing staff based on race, color, sex, sexual preference, religion, or national origin.
Implications: Federal contractors must now certify compliance with this order. This may include ending DEI programs, DEI-focused employee resource groups, and removing DEI-focused language from your organization's career web pages.
Executive Order on Enhanced Vetting and Screening
At the time of writing, specifics of this executive order have not yet been explicitly defined. It intends to subject employers to more stringent vetting and screening processes for immigrant workers to ensure that they are eligible to work in the US.
Implications: Employers need to re-examine their employment verification processes to ensure they are compliant with this executive order when more clarification is issued. This primarily pertains to immigrant employees.
Understanding the Executive Orders
Texas is home to a large and diverse immigrant community. Thousands of organizations in Texas rely on immigrant workers who may have different types of visas and work eligibility.
If more stringent requirements are placed on worker documentation, your organization may not be able to meet its staffing needs if it relies on immigrant labor. Texas businesses may need to form contingency plans to hire staff whose documentation is compliant with the new executive orders.
Legal Requirements for Texas Employers
In complying with federal and Texas worker documentation laws, there are several documentation processes to ensure that immigration compliance requirements are met:
Employee Eligibility Verification (Form I-9)
Form I-9 must be collected from every new hire regardless of their citizenship, residency, or country of birth. This form verifies that the employee is eligible to work in the US, and it must be completed within three days of their start date.
The employer must request the documents from their new employee, review them, and ensure they are valid. US passports and permanent resident cards help prove residency and identity, a driver's license and Social Security card are the next best options if the employee doesn't have a passport or permanent resident card.
All employers must keep I-9 forms for the latter of, three years after the employee's date of hire or one year after their termination. All records with employees' personal information, like tax forms and hiring documents, should be easy to search and reference if immigration authorities request them.
E-Verify
E-Verify is a federal web-based system that compares information from an employee's I-9 form to data in US government records. Employers get an alert if there's a mismatch, and the employee has a chance to rectify this. An E-Verify mismatch does not always mean that an employee's immigration status is illegal or that they are using a fraudulent Social Security Number, as people can legally change their names, among other attributes.
In Texas, private employers can voluntarily opt into E-Verify but are not mandated by the state to use it. State agencies, including higher education institutions, are required to use E-Verify.
If your organization is a contractor or subcontractor for a Texas university or state agency under the governor's direction, it is also required to use E-Verify. If you do not use it, it may result in a loss of contracts. All federal contractors must use E-Verify within 30 days of the contract being awarded if the contract is subject to Federal Acquisition Rules (FAR).
Social Security Number Verification Service (SSNVS)
Employers may use this service provided by the Social Security Administration to verify that the names and Social Security numbers of employees match Social Security’s records. A mismatch may occur if the new hire was a victim of identity theft.
Changes Due to Executive Orders
Impact of Rescinding DEI Programs:
Your organization must ensure that your hiring practices are not discriminatory but also do not have quotas or preferential treatments for specific groups. If you have federal contracts, you may need to remove DEI-focused language from your copy.
Enhanced Vetting for Immigration:
Employers in Texas and other border states may be subject to more stringent worker verification processes and interrogation from immigration authorities. Workers may require more advanced background checks and multiple verification rounds for their immigration documents to ensure they are authorized to work in the US. The language in these executive orders may also clarify which other compliance measures are required if your organization relies heavily on immigrant labor.
Compliance Strategies
The speed at which these executive orders are issued and unclear timelines for transition can make it challenging to map out a compliance strategy. Stay informed about changes to Texas employment law and clarification on federal guidelines and executive orders.
If you are unsure about the impacts of executive orders and other federal law changes on your business, you should seek the advice of an attorney for complex situations.
Actions for Texas Employers
Strong recordkeeping is prudent for any employer, but especially Texas employers that rely heavily on immigrant workers. To ensure your compliance and your employee's safety, it's best to form procedures that ensure I-9s are submitted and E-Verify mismatches are addressed right away.
Stay Compliant – Contact Affiliated HR & Payroll for expert guidance on navigating Texas employment laws and executive orders.