State Employment Verification Laws Go Into Effect in 2012

With the start of 2012, state laws requiring the use of E-Verify by employers to verify the employment eligibility of new hires have gone into effect in several states, including Alabama, Georgia, Louisiana, South Carolina, and Tennessee.  However, California breaks the trend by passing legislation prohibiting state and local governments in California from requiring employers to use E-Verify to verify the employment eligibility of newly hired employees. 

What Is E-Verify?

E-Verify is an Internet-based system operated by the U.S. Citizenship and Immigration Services (USCIS), part of the Department of Homeland Security (DHS), in partnership with the Social Security Administration (SSA). E-Verify provides an automated link to federal databases to help employers verify employment eligibility of their employees, regardless of citizenship. E-Verify electronically checks information provided by the employee on his or her Form I-9 against records contained in DHS and SSA databases.  E-Verify is currently free to employers.

State Laws Requiring Use of E-Verify Beginning January 1, 2012

Alabama:  The Alabama Taxpayer and Citizen Protection Act (H.B. 56), enacted on June 9, 2011, which prohibits business entities, employers, or public employers from knowingly employing unauthorized workers.  Despite legal challenges to certain provisions of the controversial legislation, the statutory requirements that certain employers to enroll in, and verify employment eligibility through, E-Verify, started taking effect on January 1, 2012.  

• Effective January 1, 2012, as a condition for the award of any state contract, every contractor or subcontractor shall enroll in E-Verify and verify the employment eligibility of its new hires using E-Verify.  Failure to comply may result in suspension of the contractor or subcontractor's state business license for a period of up to 60 days or longer for subsequent violations.
• Effective April 1, 2012, every employer (public and private) is required to enroll in E-Verify and verify the work eligibility of all new hires using E-Verify.  Failure to comply may result in the employer being placed on a three-year probationary period or suspension of the employer's business license for 10 days or longer for subsequent violations.

Georgia:  The Illegal Immigration Reform and Enforcement Act of 2011 (H.B. 87), signed on May 13, 2011, took effect on January 1, 2012 and requires certain employers to enroll in E-Verify and verify the employment eligibility of new hires.

• Effective January 1, 2012:  all private employers with 500 or more employers are required to enroll in E-Verify and verify the employment eligibility of new hires using E-Verify.
• Effective July 1, 2012:  all private employers with 100 or more employees but fewer than 500 employees are required to enroll in E-Verify and verify the employment eligibility of new hires using E-Verify.
• Effective July 1, 2013:  all private employers with more than 10 employees but few than 100 employees are required to enroll in E-Verify and verify the employment eligibility of new hires using E-Verify.

Failure to comply may result in the employer being denied the issuance or renewal of its business license, occupational tax certificate, or other document required to operate a business. 

Louisiana:  H.B. 342, which took effect on August 15, 2011, requires private employers seeking business with a Louisiana public entity for the physical performance of services to confirm in a sworn affidavit that the company has enrolled in and is verifying the employment eligibility of its new hires using E-Verify.  While it took effect on August 15, 2011, H.B. 342 applies to private employers who bid on public entity projects and enter into contracts with a public entity on or after January 1, 2012.  The requirement applies to both general contractors and subcontractors.

Failure to comply with the law may result in cancellation of the public contract including ineligibility for any public contract for a period of not more than 3 years from the date the violation is discovered.  The private contractor may also be liable for any additional costs incurred by the public entity as a result of the private contractor's noncompliance.

South Carolina:  Amendments to the South Carolina Illegal Immigration and Reform Act (S.B. 20), which took effect January 1, 2012, require all employers to enroll in E-Verify to verify the legal status of all new hires through E-Verify within three days of hire.  Failure to comply may result in probation for the employer or suspension or revocation of the employer's business license. 

South Carolina had previously enacted legislation requiring all employers to verify employment eligibility by either using E-Verify or by requiring employees to present a South Carolina driver's license or state identification card (or driver's license or identification card from a state with requirements at least as strict as South Carolina).  As of January 1, 2012, employers no longer have the option of allowing new employees to present a South Carolina driver's license or state identification card (or other state license or identification card with similar strict requirements) to be in compliance with the state law.  For Federal Form I-9 purposes, however, a new hire may continue to present an unexpired state-issued driver's license or identification card as a List B identity document. 

Tennessee:  The Tennessee Lawful Employment Act (H.B.1378) took effect for certain employers on January 1, 2012.  The state law requires employers to enroll in E-Verify and verify the work eligibility of its new hires using E-Verify.  Employers, however, have the option to request and retain one document from a list of enumerated identity/ work authorization documents in lieu of registering for and using E-Verify.  For additional information on this option, please see http://www.capitol.tn.gov/Bills/107/Bill/HB1378.pdf.

The law also requires employers to obtain and retain a copy of one of the enumerated identity/ employment authorization documents for "non-employees" as well.  A "non-employee" is defined as any individual, other than an employee, paid directly by the employer in exchange for the individual's labor or services. 

Failure to comply with H.B. 1378 may result in civil penalties ranging from $500 to $2,500 and ultimately suspension of the employer's business license, depending on the severity of the violation.

The law is being phased in according to type and size of employer.  Effective January 1, 2012, governmental entities and private employers with 500 or more employees must comply with the law.  Private employers with 200 to 499 employees must be in compliance with the law by July 1, 2012.  Private employers with 6 to 199 employees must be in compliance with the law by January 1, 2013.

California Law Prohibits E-Verify Requirement

California:  The Employment Acceleration Act of 2011 (A.B. 1236), which took effect January 1, 2012, prohibits state and local governments in California from requiring an employer to use E-Verify to verify the work eligibility of newly hired employees except when required by federal law or as a condition of receiving federal funds.  Specifically, employers cannot be required to use E-Verify as a condition of receiving a state or local government contract, as a condition of applying for or maintaining a business license, or as a penalty for violation of other laws.  This legislation was passed in response to the growing number of local governments in California including Mission Viejo, Palmdale, Lake Elsinore, Lancaster, Temecula and Murrieta, passing and implementing their own local ordinances requiring the use of E-Verify by certain employers.

Additional Information

The number of states introducing and passing immigration-related employment verification laws requiring the use of E-Verify is expected to increase in 2012 and beyond.  Also expected to increase are the number of employers enrolling in E-Verify, either voluntarily or due to a federal or state requirement.  For more information on E-Verify, visit the United States Citizenship and Immigration Services (USCIS) website.