When did a Virginia state contractor have to use E-Verify under § 2.2-4308.2, and did it cover crop pickers, delivery drivers, subcontractors, or returning seasonal workers?

Plain-English summary

In its 2011 session, the General Assembly added § 2.2-4308.2 to the Virginia Public Procurement Act, requiring employers with more than 50 employees (on average over the prior 12 months) who entered into contracts over $50,000 with state agencies "to perform work or provide services" to register for and use the federal E-Verify program to check the work authorization of their newly hired employees on the contract. Effective date was delayed to December 1, 2013. Delegate Pollard asked the AG to walk through a hypothetical: a state agency buying tomatoes. Did the contractor need to E-Verify the pickers and the delivery driver? Did the rule cover subcontractors? Did seasonal workers count as "newly hired" each time they returned from abroad?

Cuccinelli's answers tracked the statute's plain language. First, the trigger is "to perform work or provide services," and the Procurement Act defines services as work where "the service rendered does not consist primarily of acquisition of equipment or materials." A tomato-purchase contract is primarily for goods, so it did not trigger § 2.2-4308.2; the pickers and the driver were not in scope. Second, the statute applies only to companies that contract with the Commonwealth. Subcontractors are not covered, and the statute does not borrow the General Assembly's familiar formula extending obligations to subcontractors that appears in other provisions of the Procurement Act. The contractor must check "its" employees, not its subs'. Third, the federal regulations governing E-Verify treat a seasonal worker as not "newly hired" only when the worker has a reasonable expectation of resuming employment at all times. So a seasonal worker who leaves the country and returns is not newly hired if they had that ongoing reasonable expectation. That is a case-by-case factual question.

Currency note

This opinion was issued in 2011. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Did the rule cover small employers?
No. It applied to employers with more than an average of 50 employees over the previous 12 months. Employers below that headcount, even on a six-figure state services contract, were not covered.

What about contracts under $50,000?
Also out of scope. The statute set the contract-value threshold at "in excess of $50,000."

Why didn't tomato-buying count?
Because the Procurement Act defines "services" as work where the service is not primarily the acquisition of equipment or materials. Buying tomatoes is primarily acquiring materials, even if delivery is required as an incidental element.

What was the AG's logic on subcontractors?
The General Assembly knew how to extend obligations to subcontractors when it wanted to, and did so in other provisions of the Public Procurement Act. Section 2.2-4308.2 had no such language, and the operative duty ran to "its newly hired employees", meaning the prime contractor's employees, not the subcontractor's. The AG noted, separately, that state agencies retained discretion to refuse to do business with companies engaged in unethical or illegal practices.

What's the test for whether a returning seasonal worker is "newly hired"?
The opinion quoted the federal regulations: "An employer will not be deemed to have hired an individual for employment if the individual is continuing in his or her employment and has a reasonable expectation of employment at all times." The employer claiming a worker is continuing must establish that the worker expected to resume employment at all times and that the expectation is reasonable.

Background and statutory framework

Federal law generally prohibits the employment of unauthorized aliens and requires employers to verify the eligibility of those they hire. Congress directed the Secretary of Homeland Security to implement E-Verify so employers could electronically confirm work authorization of new hires, and DHS issued regulations governing the program. Participation is generally voluntary, but states may require it.

Virginia's § 2.2-4308.2, enacted in the General Assembly's 2011 session, required E-Verify registration and use by employers with more than an average of 50 employees over the prior 12 months who entered into state contracts exceeding $50,000 "to perform work or provide services." The effective date was set for December 1, 2013.

The Public Procurement Act defines "services" as "any work performed by an independent contractor wherein the service rendered does not consist primarily of acquisition of equipment or materials." The AG's plain-language reading: when the contract is primarily for goods, the duty does not attach.

Other provisions of the Public Procurement Act expressly extend particular obligations down the chain to subcontractors. The absence of similar language in § 2.2-4308.2 supported reading it to cover only the prime contractor.

For the seasonal-worker question, the AG read § 2.2-4308.2's reference to the federal program in pari materia with the federal regulations interpreting "newly hired."

Citations

• Va. Code § 2.2-4308.2 (E-Verify on state services contracts over $50,000)
• Va. Code § 2.2-505 (authority for the advisory opinion)
• Virginia Public Procurement Act (definition of "services"; subcontractor-extension provisions referenced without section numbers in the opinion)
• Federal E-Verify regulations (continuing-employment exception for seasonal workers, quoted without citation number in the opinion)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2011/11-059-Pollard.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Kenneth T. Cuccinelli, II
Attorney General

July 1, 2011

The Honorable Albert C. Pollard, Jr.
Member, House of Delegates
Post Office Box 508
Lively, Virginia 22507

900 East Main Street
Richmond, Virginia 23219
804-786-2071
FAX 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

Dear Delegate Pollard:
I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issues Presented
You inquire about the scope of the duty imposed under a recently enacted law upon certain employers who transact business with the Commonwealth. This law will go into effect on December 1, 2013. Using the hypothetical of a purchase of tomatoes by an agency of the Commonwealth, you ask whether § 2.2-4308.2 will require the contractor to use E-Verify to confirm the employment eligibility of employees who pick the tomatoes as well as employees who drive the delivery truck. In addition, you ask whether § 2.2-4308.2 applies to subcontractors under a State contract. Finally, you ask whether a contractor must treat seasonal workers as "newly hired" for purposes of E-Verify when they return to the contractor's work site after leaving and lawfully re-entering the country.

Response
It is my opinion that § 2.2-4308.2 does not apply to state contracts that are primarily for the acquisition of goods but that it can apply if the contract is primarily to acquire services. It is further my opinion that § 2.2-4308.2 does not apply to subcontractors. Finally, it is my opinion that seasonal workers, who return to a contractor's work site after having left the country and lawfully re-entered, are "newly hired" for purposes of E-Verify if they did not have at all times a reasonable expectation of resuming employment.

Applicable Law and Discussion
Federal law generally prohibits the employment of unauthorized aliens within the United States. As an enforcement measure, federal law requires employers to verify the eligibility status of individuals they hire. To facilitate the verification process, Congress directed the Secretary of Homeland Security to implement an E-Verify program to enable employers to confirm employment eligibility of new hires. The Secretary, in turn, has issued regulations governing the program.

While participation in E-Verify is voluntary for most businesses, companies may be required by state law or federal regulation to use E-Verify. In its 2011 Session, the General Assembly of Virginia enacted a law requiring certain employers to register and participate in the E-Verify program.

Section 2.2-4308.2 amends the Virginia Public Procurement Act to require the use of E-Verify by certain employers who enter into certain contracts with agencies of the Commonwealth. Specifically, it provides that

Any employer with more than an average of 50 employees for the previous 12 months entering into a contract in excess of $50,000 with any agency of the Commonwealth to perform work or provide services pursuant to such contract shall register and participate in the E-Verify program to verify information and work authorization of its newly hired employees performing work pursuant to such public contract.

"E-Verify program" refers to "the electronic verification ... program of the Illegal Immigration Reform and Immigration Responsibility Act [], as amended, operated by the U.S. Department of Homeland Security ... to verify the work authorization status of newly hired employees[.]"

While the scope of the new provision is broader than its placement among sections of the Virginia Public Procurement Act pertaining to construction might suggest, the plain language of the enactment limits its application to contracts "to perform work or provide services." The Virginia Public Procurement Act defines "services" as "any work performed by an independent contractor wherein the service rendered does not consist primarily of acquisition of equipment or materials ...." It is my opinion that, given the plain language of the statute, the requirement found in § 2.2-4308.2 to register and participate in E-Verify is triggered only when the performance required by the contract emphasizes services rather than goods. A contract that is primarily for the acquisition of goods will not trigger the new requirement.

Your hypothetical scenario concerning a contract to purchase tomatoes involves primarily an acquisition of goods, even if it involves some incidental service elements, such as a requirement to deliver the goods purchased. In response to your first question concerning a hypothetical purchase of tomatoes by the Commonwealth, I therefore conclude that a contract to purchase tomatoes does not trigger the requirements of § 2.2-4308.2 and, therefore, in that situation the contractor is not required to use E-Verify to confirm the employment eligibility of employees who pick the tomatoes or who drive the delivery truck.

In your second question, you raise the possibility that a prime contractor covered by § 2.2-4308.2 might subcontract the work to another company, and in such circumstances, you ask whether the employment eligibility of the employees who perform the subcontracted work must be confirmed through E-Verify. By its terms, § 2.2-4308.2 applies only to companies that enter into a contract with an agency of the Commonwealth. In other provisions of the Virginia Public Procurement Act, the General Assembly has made requirements applicable not only to the prime contractor but also to its subcontractors. Section 2.2-4308.2 does not include any such provision. Moreover, by its terms, § 2.2-4308.2 requires the contractor to use E-Verify to confirm the employment eligibility of "its" employees. It does not require the Contractor to use E-Verify to confirm eligibility of workers employed by subcontractors. It is therefore my opinion that § 2.2-4308.2 does not apply to subcontractors. Although § 2.2-4308.2 does not require a contractor to check E-Verify for subcontractors, I would further note, however, that agencies of the Commonwealth are free to refuse to do business with businesses that are engaged in unethical or illegal business practices.

Finally, you ask whether seasonal workers, who return to a contractor's work site after having left the country and lawfully re-entered, are considered "newly hired" under the E-Verify program. Because statutes relating to the same subject matter are to be read in pari materia, I find that the federal regulations governing the implementation of the federal law cited in the Virginia statute provide guidance in interpreting the phrase. The regulations issued by the Department of Homeland Security specifically address the application of the federal statute to seasonal employees. Those regulations provide that:

An employer will not be deemed to have hired an individual for employment if the individual is continuing in his or her employment and has a reasonable expectation of employment at all times.

The regulation further provides that "[a]n individual is continuing in his or her employment" when "an individual is engaged in seasonal employment." Nonetheless, "[t]he employer who is claiming that an individual is continuing in his or her employment must also establish that the individual expected to resume employment at all times and that the individual's expectation is reasonable."

In light of this authority, I conclude that a seasonal worker, who returns to a contractor's work site after having left the country and lawfully re-entered, is "newly hired" for purposes of E-Verify if he did not have at all times a reasonable expectation of resuming employment. Conversely, a seasonal worker would not be "newly hired" if he in fact did at all times have a reasonable expectation of resuming employment. The determination of whether there was a reasonable expectation of resuming employment must be made on a case-by-case basis, considering all relevant factors.

Conclusion

Accordingly, it is my opinion that § 2.2-4308.2 does not apply to contracts that are primarily for the acquisition of goods, including tomatoes, but that it can apply if the contract is primarily to acquire services. It is further my opinion that § 2.2-4308.2 does not apply to subcontractors. Finally, it is my opinion that seasonal workers, who return to a contractor's work site after having left the country and lawfully re-entered, are "newly hired" for purposes of E-Verify if they did not have at all times a reasonable expectation of resuming employment.

With kindest regards, I am
Very truly yours,

Kenneth T. Cuccinelli, II
Attorney General