Mandatory E-Verify May Be Coming to a State Near You
It’s your first day of work in the HR department, and you’ve been given the dubious honor of managing your company’s I-9 compliance program and ensuring the organization stays out of trouble. Let’s assume you accept this role (and resist the urge to run screaming from the building). One of your first tasks will be to understand and outline the current I-9 onboarding process for your new hire employees: when and where is the I-9 completed; who is responsible for completing section 2; what kind of training and policies do you have in place; and God forbid, what happens if you are audited.
But then you realize there’s an additional element to I-9 compliance which has been completely overlooked – apparently, and unbeknownst to your company, there is this electronic verification system called E-Verify which supposedly compliments the I-9 process and helps to ensure you have a legal workforce. You do some research and find a conflicting statement: it’s a “free” and “voluntary” program that is required in certain states. Scratching your head, you wonder how in the world does a company figure out if they are really required to use E-Verify?
E-Verify is often likened to the runaway train that is slowly (but surely) crisscrossing the United States through an ever-expanding web of state and local legislation. During the past few years, an increasing number of state and local governments have enacted a wide variety of laws, ordinances, and executive orders which require certain employers (under certain conditions) to use the E-Verify system for newly hired employees. If your head is starting to hurt, you’re not alone.
While many of these laws lack teeth (in terms of enforcement), there are others which call for penalties, fines, or even public shame (as is the case for employers cited in South Carolina). If you’re new to the world of I-9 and E-Verify compliance or are currently reviewing your processes and procedures, I highly recommend you study this ever-growing patchwork of E-Verify requirements (summarized below) as part of your broader I‑9 compliance efforts. Ignoring an E-Verify mandate is like ignoring a small fire in your kitchen (with the hopes that it will eventually extinguish itself). With that colorful metaphor in mind, let’s take a closer look at E-Verify requirements and how to keep from getting burned.
Federal vs. State Law
Before we begin, you might be wondering why these states would even be allowed to create legislation concerning E-Verify in the first place. Shouldn’t federal law (which does not require the use of E-Verify except in the case of certain federal contractors) trump any of these mandatory state law provisions? This very question was addressed in a 2011 U.S. Supreme Court case (U.S. Chamber of Commerce v. Whiting) regarding the Legal Arizona Workers Act of 2007.
This hotly debated law reiterates the federal requirement to employ a legal workforce and also mandates Arizona employers to use E-Verify or face possible suspension or revocation of their business licenses. The plaintiffs argued that the Immigration Reform and Control Act of 1986 (IRCA) preempts any state or local law from imposing civil or criminal sanctions upon those who employ undocumented workers.
Not so, said the Supreme Court (by a 5-3 vote) because there is a tiny exception in IRCA which allows states to intrude upon immigration enforcement by means of “licensing and similar” laws. So in the case at hand, the court determined that Arizona’s threat to revoke business licenses for failing to use E-Verify was perfectly fine.
The result? As you might guess, other states soon joined the E-Verify “licensing law” bandwagon, which has led to the patchwork of E-Verify state laws and requirements listed below (along with widespread employer confusion). How bad can it be? Let’s take a look!
States that Require E-Verify for All Employers
Currently, Alabama, Arizona, Mississippi, and South Carolina mandate E-Verify for all employers across the board, whereas Georgia, Utah, and North Carolina give certain small organizations a break (i.e., the law is only applicable to those with 10, 15, and 25 employees respectively). Then we have Louisiana and Tennessee, both of which provide employers a choice: either use E-Verify or make sure to only accept (and retain copies of) certain identity and work authorization documents. Confused yet? But wait, there’s more!
Public Employers and State Contractors
Florida, Indiana, Missouri, Nebraska, Oklahoma, Pennsylvania and Texas mandate E-Verify for public employees and state contractors; Idaho and Virginia mandate E-Verify for public employers only; Colorado and Minnesota require only state contractors to use the system; and a variety of counties and cities mandate the use of E-Verify in Michigan, New York, Oregon, and Washington state. Pretty straight forward, right? Ah, but we’re not done yet.
Meanwhile, California, in its infinite quest to be different, actually prohibits cities and counties from imposing any kind of E-Verify mandate at all; Illinois requires employers to sign a special attestation form to indicate that they have received training and have posted the required notices; and Colorado (while not requiring E-Verify for private employers) requires employers to copy all supporting I-9 documents and complete a separate (and distinct) employment eligibility attestation form in addition to the I-9. Got it?
On the Horizon
In the absence of any kind of meaningful immigration reform, states have been continuing to introduce new legislation that could require some (or all) employers to use the E-Verify system. While many of these bills will undoubtedly die a quiet death, it is still worth tracking them in the event they eventually become law. Here are a few:
North Carolina: House Bill 318, which has already passed in the House of Representatives, would lower the participation threshold to employers with 5 or more employees (from the current level of 25 or more); repeal the E-Verify exemption for temporary employees; require compliance in certain governmental contracts; and provide that certain consulate or embassy documents may not be used to determine a person’s identification or residence for governmental and law enforcement purposes.
Oregon: House Bill 2043 uses employee tax deductions as an incentive for employers to use the E-Verify program whereas Senate Bill 104 takes a more direct approach and simply mandates all state agencies to use the system for new employees hired on or after January 1, 2016.
Nebraska: Legislative Bill 611 would require private employers to begin using the E-Verify system for new employees hired on or after January 1, 2016, or risk facing a penalty of not more than $2,000.
California: last but not least, California’s Assembly Bill 622 would further restrict the use of E-Verify by specifically prohibiting employers from using the system to check the employment authorization status of prospective employees as well as existing employees (except where otherwise required by federal rules). The bill would also require employers to provide employees with TNC notices as required under the program rules. Failure to abide by any of these provisions could lead to a civil penalty of $10,000 for each violation.
In light of these constantly changing and often-complex E-Verify requirements, employers need to make a coordinated effort to successfully manage their I-9 and E-Verify obligations by working closely with experienced immigration counsel to ensure compliance with both state AND federal rules. In addition, employers are well-advised to use an integrated I-9/E-Verify system which can automatically control the submission of I-9s to E-Verify by work location or impose other state-specific rules which may be in effect.
Want to learn more about the various E-Verify state laws? Please visit the LawLogix E-Verify State Map to see an interactive view of all of the E-Verify requirements currently in effect. You can also request a free download of our reference chart for offline viewing.