Law of the West |

Law of the West

Many things have changed over the years since America suffered the tragic events of Sept. 11. We all knew that air travel would become more burdensome and the security screening more intrusive ” at some airports today you are virtually stripped naked thanks to (or because of) millimeter wave and back-scatter x-ray technology. The nature and extent of the Orwellian privacy invasions could never have been guessed. And, we have all been drafted into the homeland security effort in some form or another.

One of the areas that seems to have become targeted is immigration and undocumented workers. During the 1990s many states and the federal government began systems through which employers had to report new hires. These systems were not really designed or meant to enhance homeland security ” it wasn’t a concern at the time. They were actual meant to catch deadbeat dads. You remember, the focus was on catching those fathers that ran out on their responsibility to their children. It was all part of a Federal law; the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) of 1996.

In Colorado, employers need to report new hires within 20 days and can report it online at You can do the same reporting in Wyoming at and in Nebraska you can surf over to and do the same thing.

About the same time, the Immigration and Naturalization Service ” now part of the Department of Homeland Security (DHS) and called the U.S. Citizenship and Immigration Services ” created a requirement that employers collect proof of eligibility to be employed from new hires. Each new employee was required to complete an I-9 form and provide proof of citizenship or eligibility to be employed. The completed forms didn’t go anywhere ” they had to be retained by the employer for inspection by the government if questions arose. Collecting the information, but not creating a database with it, was partly a response to privacy concerns at the time. But, times have changed.

Now, there is going to be another list that employers will have to submit new employer data to as part of the war on terror and to control illegal immigration. The process is spreading slowly state by state and industry by industry. It is an on-line system of the Department of Homeland Security ” E-Verify.

DHS tells us on their website that, “E-Verify (formerly the Basic Pilot/Employment Eligibility Verification Program) is an online system operated jointly by the Department of Homeland Security and the Social Security Administration (SSA). Participating employers can check the work status of new hires online by comparing information from an employee’s I-9 form against SSA and Department of Homeland Security databases. More than 69,000 employers are enrolled in the program, with over four million queries run so far in fiscal year 2008. E-Verify is free and voluntary, and is the best means available for determining employment eligibility of new hires and the validity of their Social Security Numbers.”

This voluntary system is slowly making the march to being compulsory. It already is in Arizona. The Arizona employer sanctions law intends to prevent any employer in the State of Arizona from knowingly or intentionally hiring and/or employing illegal immigrants. As of January 1, 2008, all employers in Arizona, regardless of size, are required to use the federal government’s E-Verify program to verify the status of new employees. And, the use of the system is now required by contractors of the federal government. As of June 9, 2008, President George W. Bush has directed all federal departments and agencies to require contractors, as a condition of each future federal contract, to agree to use an electronic system to verify workers’ employment eligibility.

In response to this Executive Order, DHS Secretary Michael Chertoff designated E-Verify as the system of choice. On June 12, 2008, agencies responsible for supervising and regulating federal contracting began the process of instituting rules to implement this directive. It would seem to only be a matter of time before the requirement extends to all employers.

Now don’t get me wrong, I certainly want to ensure that our borders are safe and secure. No one wants to wake up one morning to CNN telling us about an American city that was the previous day … but isn’t today. But, when we start compiling and maintaining databases that will reach out and include every American worker, from the high schooler frying burgers at the local fast-food stop to the 50 year old lawyer, maybe its time to re-examine the value we had always placed on individual privacy. Just when do the preventative measures to protect us against the potential harm of a threat become the harm we had once feared.

The information provided in this column is based upon general principles of law and should not be relied upon in any manner. It is not the intent of this column, its author, publisher or the Fence Post to provide legal advice to any person. You should address specific legal questions to your family lawyer. In Wyoming, the State Bar can refer you to competent lawyers in your community by calling (307) 634-7823. In Colorado, call the Metropolitan Lawyer Referral Service at (303) 831-8000. Readers in Nebraska can receive referrals from the State Bar Association by calling 1-800-742-3005.