E-Verify –- the Web 2.0 system created by the Department of Homeland Security (DHS) for PC-based verification of employment eligibility (“PC” in this case means “personal computer” and perhaps not “political correctness”) –- is a creature of contract. The contract in question, an agreement known as a Memorandum of Understanding (MOU), is a take-it-or-leave-it, non-negotiable “understanding” that in law meets the classic definition of an adhesion contract.

Some employers voluntarily participate in E-Verify; others are dragooned into participating under mandate of state law or consent decree to forestall criminal sanctions. In the future, federal contractors and their subs (unless exempted) will also be required to participate if the Obama Administration allows the Bush-era Federal Acquisition Regulations to become effective in May, 2009.

If the MOU is a contract, it is a strange one indeed, differing in many ways from traditional contracts. I’ll offer just a few examples.

The MOU expresses in its initial section the claimed “points of agreement” between DHS and a participating employer, but also sets out the responsibilities of the Social Security Administration. Under the MOU, the SSA is required to provide the employer with “available information that allows the Employer to confirm the accuracy of Social Security Numbers provided by all employees verified under [the] MOU and the employment authorization of U.S. citizens”. SSA must also give the employer “appropriate assistance with operational problems that may arise”. These obligations of SSA to the employer are extended in the MOU although no SSA official signs the “contract.” (Apparently, an unpublished agreement between SSA and DHS is all the assurance the employer receives from DHS that SSA will live up to its unsigned commitments.)

The MOU apparently prohibits an employer – once the document is signed – from seeking advice from an attorney concerning the scope of the employer’s legal obligations under the MOU or under federal law. The MOU provides:

The Employer agrees that it will use the information it receives from SSA or DHS pursuant to E-Verify and this MOU only to confirm the employment eligibility of employees as authorized by this MOU. The Employer agrees that it will safeguard this information, . . . to ensure that it is not used for any other purpose and as necessary to protect its confidentiality, including ensuring that it is not disseminated to any person other than employees of the Employer who are authorized to perform the Employer’s responsibilities under this MOU, except for such dissemination as may be authorized in advance by SSA or DHS for legitimate purposes. [Emphasis added.]

Unlike any contracts this blogger has seen, the MOU purports to grant an immunity breathtaking in scope:

[N]o person or entity participating in E-Verify is civilly or criminally liable under any law for any action taken in good faith based on information provided through the confirmation system.

Yet what the MOU gives, it also takes away. The document mandates that an employer engage in discriminatory conduct prohibited as “document abuse” under Immigration and Nationality Act (INA) § 274B(a)(6). Why so?

The MOU requires an employer to refuse to accept for E-Verify purposes a document of identity that is otherwise acceptable as a Form I-9 List B document if it lacks a photograph. A U.S. voter registration is a valid List B document even if it lacks a photograph. An employer cannot reject a voter registration card for purposes of I-9 compliance even if the card bears no photograph. If the U.S. citizen also presents a List C unrestricted Social Security card (one not restricting employment), the employer may not request more or different documents or refuse to employ that individual. Such conduct is prohibited under INA § 274B(a)(6), which provides:

A person’s or other entity’s request, for purposes of satisfying the requirements of section 274A(b) [the section imposing the duty of employment eligibility verification], for more or different documents than are required under such section or refusing to honor documents tendered that on their face reasonably appear to be genuine shall be treated as an unfair immigration-related employment practice if made for the purpose or with the intent of discriminating against an individual in violation of paragraph (1).

Under the cited “paragraph (1)” [prohibited under INA § 274B(a)(1)], a U.S. citizen is a protected individual for purposes of the prohibition outlawing citizenship discrimination. So if the U.S. citizen refuses to provide a List B document with a photograph, can the employer refuse to hire that person – who, after all, never signed the MOU – because under the MOU the employer cannot comply with the E-Verify photo ID requirement?

A plaintiff’s lawyer, or perhaps the Office of Special Counsel for Unfair Immigration-Related Employment Discrimination -– a unit of the U.S. Department of Justice (which also is not a signatory to the MOU) –- might just take a different view. If either should sue the employer, the employer must solely bear the costs of litigation and any damages. On this point, the MOU provides:

Each party shall be solely responsible for defending any claim or action against it arising out of or related to E-Verify or this MOU, whether civil or criminal, and for any liability wherefrom [sic] . . .

So the employer who apparently would be a document abuser under INA § 274B(a)(6) is liable even though complying scrupulously with the contractual requirements of the non-negotiable MOU. This would be the outcome unless the MOU’s contractual immunity provisions quoted above are found by a court to prevail over federal immigration law.

In any case, the hapless employer must apparently be unrepresented in the citizen’s discrimination suit, because (as noted above) the employer cannot consult legal counsel, given that the employer is banned by the MOU from “disseminating any information to any person”!

I don’t envy the courts when they inevitably will be required to sort out the bizarre contract law principles reflected in the MOU.