The E-Verify system is a system set up by the Dept of Homeland Security to allow employers to verify a workers legal right to work at a job in the United States. While initially the system had some bugs, it has been in place long enough now that more and more states are legislating employer requirements to use the E-Verify system. Jan 1, 2012 and July 1, 2012 seem to be dates when a number of state laws went into effect.  Below is an outline of the some of the South East state laws.

Tennessee: Many private employers and all governmental entities are required by law to demonstrate that they are hiring and maintaining a legal workforce either by verifying the employment eligibility of all newly hired employees through the E-Verify program or by requesting all newly hired employees to provide one of the following identity and employment authorization documents:

  • A valid Tennessee driver’s license or photo identification
  • A valid driver’s license or photo identification from another state where the license requirements are at least as strict as those in Tennessee
  • A birth certificate issued by a U.S. state, jurisdiction or territory
  • A U.S. government issued certified birth certificate
  • A valid, unexpired U.S. passport
  • A U.S. certificate of birth abroad
  • A certificate of citizenship
  • A certificate of naturalization
  • A U.S. citizen identification card
  • A lawful permanent resident card
  • Other proof of employee’s immigration status and authorization to work in the United States

The implementation dates for the new law are structured to occur in phases:

  • January 1, 2012 – All state and local government entities and private employers with 500 or more employees must enroll and participate in E-Verify or request and maintain an identity / employment authorization document from a newly hired employee
  • July 1, 2012 – All private employers with 200 to 499 employees must enroll and participate in E-Verify or request and maintain an identity / employment authorization document from a newly hired employee
  • July 1, 2013 – All private employers with 6 to 199 employees must register and utilize E-Verify or request and maintain an identity / employment authorization document from a newly hired employee

It appears that private employers with 5 or less employees are exempt from these new provisions. However, private employers with six or more employees to whom this law applies to must also collect one of the employment authorization documents types listed above for “non-employees” as well. The law defines “non-employee” as “any individual other than an employee, paid directly by the employer in exchange for the individual’s labor or services.”

Additionally, the law specifies that employers must maintain records of results generated by the E-Verify program for three years after the date of the employee’s hire or for one year after the employee’s employment is terminated, whichever is later. Employers must also maintain records of any employment authorization documents for one (1) year after the employee or non-employee ceases to provide labor or services for the employer, whichever is later.

In the event of any alleged violations of the law, the Tennessee Department of Labor and Services is authorized to request documentation establishing the employer’s compliance with the law, and the employer is required to supply the documentation within thirty days. If the Department determines the employer has violated the new law, a final order for violation of the law shall be issued and may include fines and/or business license suspension.

Virginia:  All Virginia government agencies are required to enroll in and use E-Verify effective December 1, 2012.  Currently, state law requires public bodies to include contractual provisions that the contractor does not and shall not knowingly employ an unauthorized alien as defined in the federal Immigration Reform and Control Act of 1986. If an independent contractor fails to provide documentation of the contractor’s employment authorization, the contracting entity must withhold state income tax at the top marginal income tax rate from any compensation paid to the contractor.

North Carolina:  All state agencies, offices, and universities must use E-Verify.  This applies to employees hired on or after January 1, 2007, except for employees of local education agencies hired on or after March 1, 2007. Furthermore new legislation specifies that all counties and municipalities must register and utilize E-Verify to verify the work authorization of all new hires beginning October 1, 2011.

Private employers are also affected by the law. Like many states, compliance dates are active in phases and determined by the total number of employees as follows:

  • Private employers with 500 or more employees are required to participate by October 1, 2012
  • Private employers with 100-499 employees are required to participate by January 1, 2013
  • Private employers with 25-99 employees are required to participate by July 1, 2013

It appears that the new requirements do not apply to private employers with less than 25 employees and/or seasonal temporary employees who are employed for 90 or fewer days during a 12-consecutive-month period. The law also states that each employer shall retain the record of the verification of work authorization while the employee is employed and for one year thereafter.

Upon receipt of any filed complaint that an employer is allegedly violating or has allegedly violated the new law, the North Carolina Commission of Labor is authorized to conduct an investigation. If it is determined that a violation occurred, the employer shall be ordered to file a signed sworn affidavit indicating that, after consultation with the employee, it has requested a verification of work authorization via E-Verify. At this time, the Commission of Labor is also authorized to notify both the U.S. Immigration and Customs Enforcement and local law enforcement to notify them of the possible presence of an unauthorized alien. The employer will be ordered to pay a $10,000 civil penalty if it fails to file the required affidavit within three business days, and any subsequent violations are subject to additional civil penalties.

Georgia:  Many private businesses with 11 or more employees are required by law to utilize E-Verify to confirm employment eligibility status of newly hired employees beginning January 1, 2012.

The implementation date for these new guidelines directly correlates with the total number of employees:

  • Private employers in Georgia with 500 or more employees must use E-Verify for new hires on or before January 1, 2012.
  • Private employers in Georgia with 100 or more employees but fewer than 500 must use E-Verify for new hires on or before July 1, 2012.
  • Private employers in Georgia with between 11 and 99 employees must use E-Verify for new hires on or before July 1, 2013.
  • Private employers in Georgia with 10 or fewer employees are exempt from the law.

In order to determine when the E-Verify requirement will go into effect, private employers must count the number of employees working at least 35 hours per week as of January 1 of this year.

Take note Payroll and HR managers.  E-Verify is here to stay.