|
Starting March 19, 2026, commercial construction contractors must use E-Verify to confirm new employees are authorized to work in the United States under a law claiming to root out undocumented workers.
Specifically, the E-Verify Workforce Integrity Act requires any “nonresidential construction contractor, subcontractor, or labor broker to verify the employment eligibility of each employee hired to perform work on a nonresidential construction project through the E-Verify program.” It defines “nonresidential construction project” as the “construction or renovation of any building, highway, bridge, utility, or related infrastructure” in Ohio.
The Act does not differentiate between the various trades that may perform work on a nonresidential construction project, so it presumably applies to all contractors, subcontractors, or labor brokers that contribute to the project, including those that supply plumbers, pipefitters, HVAC installers, concrete finishers, carpenters, welders, and laborers.
The Act does not apply to contractors, subcontractors, or labor brokers that construct residential homes, mobile homes, and farm buildings. It is unclear from the legislative history whether contractors that work on commercial and residential projects must submit to E-Verify new employees who would only work on residential projects. However, not submitting all new employees to E-Verify could restrict contractors, subcontractors, or labor brokers from assigning the residential workers to commercial projects.
E-Verify is a federal web-based system that confirms an employee’s identity and employment eligibility by comparing information provided by employers from an employee’s Form 1-9 to records possessed by the U.S. Department of Homeland Security and the Social Security Administration. Employers are required to use E-Verify in addition to completing Forms 1-9 at the start of employment.
Failure to comply with the E-Verify requirements carries a monetary penalty of $250 to $25,000 for each violation and can result in disqualification from bidding on or participating in any future state contract for a period of up to two years. Additionally, an employer who knowingly hires an unauthorized worker could permanently lose its business license.
If an employer receives a final non-confirmation of employee eligibility from E-Verify - meaning E-Verify cannot verify an employee’s eligibility to work in the United States - then the employer must not continue to employ the employee or will be found in violation of the Act.
Under the Act, the Ohio Attorney General is tasked with investigating formal and anonymous complaints to ensure compliance. If the Attorney General determines that reasonable evidence exists that a violation of the Act has occurred, the Attorney General will issue a notice of violation. The notice of violation:
- Directs the employer to provide satisfactory proof within 10 days that the employee is authorized to be employed under the federal Immigration Reform and Control Act of 1986;
- Specifies any penalty assessed; and
- Notifies the employer of its right to request a hearing to contest the notice before the Director of Commerce. If the employer fails to request a hearing, then the notice of violation becomes an enforceable order.
To ensure compliance with the Act, commercial construction contractors, subcontractors and labor brokers should enroll in E-Verify and begin verifying employees. Further, contractors and subcontractors should collaborate with each other on verifying employees to prevent any violations resulting in delaying ongoing or future projects.
Meyers Roman will continue to monitor the E-Verify Workforce Integrity Act and how the state implements and monitors compliance with the requirements.
Rick Hepp is a Partner in the Labor & Employment Group and Specialty Lead of the Firm's Business Immigration Group. He can be reached at 216-831-0042, extension 604 or rhepp@meyersroman.com.
Disclaimer: Please note that this Legal Update and the information contained herein do not, and are not intended to, constitute legal advice or legal representation or create (and is not a solicitation to create) an attorney-client relationship; instead, all of the information, content, and materials contained in this publication are for general informational purposes only and may not reflect current legal developments. You should not act upon any such information, content or materials contained in this publication without first seeking qualified legal counsel.
| 
