North Carolina Legislature Relaxes E-Verify Rules with HB 786

When the North Carolina General Assembly passed House Bill 36 back in June of 2011, it appeared the rules to E-Verify were fairly straightforward, allowing private employers of various sizes to enroll and begin using E-Verify on a scheduled timeline. Recently, it seemed the legislature wasn’t quite as happy as we thought with House Bill 36.

NORTH CAROLINA’S HB 36

House Bill 36, now known as Session Law 2011-263 (S.L. 2011-263) mandated that “each employer, after hiring an employee in the United States, shall verify the work authorization of the employee through E-Verify.”  The law applied to all private employers in North Carolina who employed 25 or more employees and included special provisions for county and municipal agencies to use E-Verify as well.  Private employers found in violation of the law, after an investigation, would be subject to civil penalties for $10,000 for the first violation.

The law became effective on October 1, 2011 with the following schedule for employers:

  • October 1, 2012, for employers with 500 or more employees
  • January 1, 2013, for employers with 100 or more employees (but fewer than 500 employees)
  • July 1, 2013, for employers with 25 or more employees (but fewer than 100 employees)

At the time the bill became law, employees employed by a private employer for 90 days or fewer during a 12-consecutive-month period were exempt from the mandatory E-Verify requirement outlined above.

NORTH CAROLINA’S HB 786

In April of this year, the state legislature introduced House Bill 786, further modifying how E-Verify would be enforced in the state of North Carolina.

Under HB 768, no city or country or state government agency or board may enter into a contract with contractors (and their subcontractors) unless those contractors (and their subcontractors) have enrolled and are participating in E-Verify.  This portion essentially expands E-Verify to state contractors and subcontractors.

Curiously, the bill also amends the definition of an employee for private employers, from “any individual who provides services or labor for employer in this State for wages or other remuneration” by adding

The term does not include an individual whose term of employment is less than nine months in a calendar year.

What effect does this amendment to the definition of an “employee” for private employer have on the state of North Carolina?  Alan Gordon, Founding and Managing Attorney at Alan Gordon Immigration Law in Charlotte, North Carolina, commented the amended definition “will particularly benefit agricultural employees who come to North Carolina to work during the growing season.”

One could argue that the amendment to the definition of an employee would weaken S.L. 2011-263 (HB 36).  “Not requiring employers to use E-verify for employees employed less than 9 months would make HB 36 less effective, in particular in industries that typically hire employees for 9 months or less,” said Mr. Gordon.

If the redefinition of an “employee” potentially weakens the requirement for private employers to enroll and use E-Verify, particularly for seasonal or short-term employees, then why allow the amendment?  The legislative record is fairly sparse so the intent of the legislatures is unclear.

According to Mr. Gordon, “Regardless of the motivation, it would be helpful in alleviating the problems we have seen in other states relating to lack of agricultural workers in response to these types of laws.”  In North Carolina though, farmers have been pushing back hard on the E-Verify mandate.

The bill passed through readings of both the House and the Senate and was ratified last week.  It is currently awaiting signature by Governor Patrick McCrory.  It remains to be seen, in the long run, what effects obligatory E-Verify laws will have on all employers in the state.

What are your thoughts about the amendment to the definition of an “employee”?  Does it make sense?

UPDATE 8/15/2013

Governor McCory vetoed HB 786, indicating the need to protect jobs for North Carolinians.  He stated, “This legislation has a loophole that would allow business to exempt a higher percentage of their employees from proving they are legal U.S. citizens or residents.  Every job an illegal immigrant takes is oneless job available for a legal North Carolina citizen.  We must do everyting we can to help protect jobs for North Carolinians first and foremost.” You can read more of Governor McCrory’s statements here.

UPDATE 9/4/2013

Both the state Senate and House overrode Governor Patrick McCrory’s veto of HB 786 by gaining a majority (3/5) vote yesterday and today (9/3 and 9/4).  With a congressional override, HB 786, also known as Reclaim North Carolina Act becomes law!

– See more at: http://www.lawlogix.com/blog/northcarolinalegislaturerelaxeseverifyruleshb786#overlay-context=what-is-dream-act-and-who-are-dreamers