Best Practices Construction Law : Construction Lawyer & Attorney : Matthew DeVries : Stites & Harbison Law Firm : Green Building & LEED Litigation

Last night, the evening news reported that Tennessee House Democrat Leader Mike Turner planned to file a complaint with the Department of Labor, alleging that "one of the contractors working on the Music City Center project is hiring illegal immigrants."  Turner stated that he received the information from an inside source.

While there may be muchos problemas on the Music City Center, this is a good time to review the state's laws on use of immigrant labor on public projects.  Here is what the law requires:

• The state shall not contract for goods or services from any person who knowingly utilizes the services of illegal immigrants in the performance of the contract.
• That means, no contractor can knowingly utilize the services of illegal immigrants in the performance of a contract with the state.
• Effective January 1, 2007, the contractor must attest in writing that it will not knowingly utilize services of illegal immigrants.
• If a contractor does so, then he may be barred from public contracting for a period of one year.

So, how does the contractor comply with the state law?  First, it should include an appropriate attestation clause in its prime contract with the state, which may look something like this:

Contractor attests, certifies, warrants, and assures that it shall not knowingly utilize the services of an illegal immigrant in the performance of the Work and shall not knowingly utilize the services of any Subcontractor who will utilize the services of an illegal immigrant in the performance of the Work.

The next step for the contractor is to include a similar requirement in its subcontracts, which may look something like this:

Contractor has agreed to comply with the immigrant labor provisions of all applicable laws, including Tennessee Code Annotated, Section 12-4-124. Accordingly, Subcontractor agrees that it will not knowingly utilize the services of illegal immigrants in the performance of the Work. Additionally, upon execution of this Subcontract, Subcontractor shall provide a written attestation in the form of the attached “Addendum” stating that it will not knowingly utilize the services of illegal immigrants in the performance of the Work.

This information may be helpful for projects in Tennessee and you should check with your attorney to review the applicable state and other Federal labor requirements for public projects.

Update: Thanks for friendly reader Emily for pointing out that there is no such thing as muchas problemas and the correct phrase is muchos problemas.  Gracias Emily!

Image: Nashville Chamber of Commerce

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This weekend my eldest son turned six years old.  What right of passage does every six-year-old boy celebrate in the South?  He goes to a SEC football game.  And so we set out on Saturday evening for a little "guy time" with the Vanderbilt Commodores, hot dogs, nachos and popcorn.  My son was decked out in his new blue polo shirt sent from his O'Ma, while I had on my favorite red, slim-fitting AGC golf shirt.  The problem is ... Vandy's colors are black and gold!  Which means that you are summoned ... ordered ... required ... mandated ... dictated ... to wear either black or gold!  My lack of knowledge did not excuse my non-compliance with the black and gold ritual.  Imagine being the only person in the entire stadium with a red shirt.

If you are a federal contractor, don't be the only person with a red shirt.  Effective today, contractors and subcontractors will be required to use the E-Verify system to verify their employees’ eligibility to work in the United States. In the past, the government attempted to mandate the use of E-Verify, the web based system that employers can use to confirm the legal status of their employees. The proposed law was set to take effect in January of 2009. However, the legislation instigated much debate and several controversial provisions kept it from taking effect.

Although the amended proposal which takes effect today has significantly less bite, E-Verify has broadened in scope. Not only do the provisions apply to contractors and subcontractors on federal projects, but also to any business receiving funds under the federal stimulus project. For more details about E-Verify and some of the hot issues surrounding its controversial history, check out some of the following sites:

• Michael Payne's post on Federal Construction Contracting Blog, which gives a good overview of the law's applicability to certain contracts
• An extensive summary by Nixon Peabody attorneys Kent Jonas and Matthew Zandi
• An article by Federal Times about the federal district court in Maryland which found the  regulation to be legal
• A Wall Street Journal report on the 11th hour bid to overturn the law

Given the current state of the economy, more and more contractors are taking on public projects. For this reason, all contractors and subcontractors would be well advised to prepare for compliance with the mandated use of E-Verify.  Don't be the only one wearing a red shirt.

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