Trust but E-Verify: Mitt Romney's minimum wage overture should not be dismissed for fear of employment verification


Raising the minimum wage is popular. It is so popular that even Florida passed a $15 minimum wage on the November ballot by a 61-39 margin while also giving last year's presidential loser, Donald Trump, a fairly comfortable victory statewide. Few issues are as wildly and universally liked as raising the minimum wage, with the exception perhaps of immediate COVID relief legislation.

Republicans know it's popular.

Democrats and Republicans also appear to know that a minimum wage increase to $15 an hour will likely not survive with Democratic votes alone in the budget reconciliation process Democrats will likely need to use to push through President Biden's ambitious, big, $1.9 trillion plan for COVID relief, known as the American Rescue Plan. It's unlikely to survive, both because it is likely forbidden under the Senate rules to sneak provisions that do not have raising revenue or spending as the primary purpose and because even if it somehow qualified for reconciliation, there are at least two Democratic votes in flux in the Senate on this issue. Bottom line, it very well may not survive a simple majority in the Senate.

You don't have to like it. I don't like it. But it's reality.

In light of that reality, the only path to actually raising the federal minimum wage - at least through the United States Senate in this Congress - will be to gain enough Republican support to make it possible. To that end, the news that GOP Sens. Mitt Romney and Tom Cotton broke today is worth paying attention to.

While details are scant and Romney and Cotton have yet to release full outline of their plan, what is clear is that they are working on conditioning an increase in the federal minimum wage on universal and mandatory verification of work eligibility of employees. From what what little we know, Cotton and Romney plan on incorporating in their legislation the mandatory use of E-Verify, the electronic worker eligibility system reliant on federal Social Security and Homeland Security databases, by nearly all employers.

There appears to be some pretty severe consternation against this idea of mandatory E-Verify at all, let alone as a condition to raising the minimum wage. Complaints about it range from accusations of appeal to racism to fears that the databases are too prone to produce errors, that the data may be used for unintended purposes (such as for deportations rather than simply verifying employment eligibility), etc.

And not all the objections are raised by the usual suspects. The state of California, for example, explicitly banned the state and municipalities from requiring businesses use E-Verify except when required by law or regulation. Still, some states with quickly increasing immigrant populations, like Arizona and Georgia, mandate its use for almost all employers, and the federal government not only uses (by law) to verify work-eligibility for federal employees but also mandates that its contractors and certain subcontractors do the same for their employees.

Needless to say, this issue could use some light. So below is an overview of the E-Verify program, some statistics about it, and a short analysis on whether the fears from the likes of ACLU are justified.

E-Verify was instituted as a voluntary program by law in 1996, and it allows participating employers to submit their employees' information - information that is, from the I-9 form that all employees at all US employers are required to complete anyway - to an electronic system for verification. As mentioned before, the electronic system relies on two databases: one from the Social Security Administration and one from the Department of Homeland Security to verify employment eligibility. 

Opponents of mandatory E-Verify often draw attention to the fact that government databases contain a good deal - beit a relatively small in amount in context - of inaccurate information. Opponents, like the ACLU, worry whether such inaccuracies can lead to a permanent "no-work list" for people who are in fact legally eligible to work.

But data from the system's use thus far belie that fear. 98% of submissions to the E-Verify system are verified as work-eligible at the first try. Anyone who isn't verified at first try is eligible to contest, and data shows that just 0.01% employees whose information are submitted are shown to be unauthorized even after contesting. Importantly, most cases where eligibility isn't verified appear not to be contested, likely proving that the system's determination was correct.

The process of contesting an inaccurate verification - at the first instance known as Tentative Nonconfirmation or TNC - is well defined and fair. Depending on which database (SSA or DHS) is unable to confirm eligibility, a clear process is laid to rectify, and documents needed to fix the situation are also outlined in the initial tentative determination. A final nonconfirmation is only issued in cases where employees choose not to contest an adverse finding or are unable to verify eligibility after this process.

Federal law prohibits employers from taking any adverse action against their employees either for contesting their eligibility determination or while the determination is being contested. The process also includes assistance for employees who predominantly speak a language other than English. Individuals can also shortcut the entire process by verifying their own eligibility using the self-check system.

That only leaves one excuse not to use the E-Verify system: the fact that the system actually appears to work fairly well at identifying who is and isn't authorized to work in the US. It is basically the argument that all undocumented immigrants - not just those who, like DACA recipients, have obtained a work permit - ought to be able to work on account of the fact that their eligibility isn't verified.

Even for those who believe undocumented immigrants, who have put down roots and contributed to our neighborhoods, belong here - as I do - this is a pretty tenuous position.

For one thing, as pointed out before, all employees for all employers are required to complete the I-9 form and submit documentation showing eligibility to work in the US, whether or not those employers use E-Verify. And the government can audit those at any time and take immigration action based on that (in fact, this is what most immigration raids at places of work result from). E-Verify does not give the government any information to which it isn't already entitled. So this isn't really about undocumented immigrants who do not have a formal work authorization being able to work, but rather about the ability of employers to be able to exploit employees with the excuse of concealing the immigration status of those employees. Thought of it that way, mandatory E-Verify may well reduce worker exploitation since employers will not be able to hold status over the heads of employees.

Just as importantly, mandated E-Verify would expose just how much undocumented workers are needed in certain sectors of our economy, and may well accelerate the enactment of immigration reform that will, once and for all, document the undocumented make sure they do not have to live in fear of immigration enforcement or even their own employers.

Returning to the proposal Sens. Romney and Cotton are preparing to put on the table, yes, they are only doing this because they know how popular increasing the minimum wage is, and they do not want their party to be seen as blocking it altogether. It's leverage Democrats should use. There is plenty of reason to question the sincerity of Republicans on this after they have stalled progress on the federal minimum wage for more than a decade.

It is also true that a lot will depend on exactly what the final Romney-Cotton legislation proposes the minimum wage be raised to, whether it ends the indignity of a sub-minimum wage for disabled workers and those in the service industry - and once more than a few tweets is released about the proposal, I will be here providing a critical eye - but from the available data, there is no good reason why E-Verify, in and of itself, should create a reason to reject a substantial increase in the minimum wage.