State E-Verify Provisions Taking Effect on July 1, 2010

Today, several E-Verify state law provisions go into effect, impacting employers in South Carolina, Mississippi, and Utah. Two of the provisions further expand existing E-Verify laws, while the third brings yet another state into the growing patchwork of E-Verify requirements. Below is a brief summary describing these new state requirements and penalties (if any) for noncompliance:

 

South Carolina

The South Carolina Illegal Immigration Reform Act requires all employers doing business in South Carolina to participate in E-Verify or only hire employees who possess or qualify for a South Carolina driver’s license (or other state license with similarly strict requirements). The law has been implemented in stages, covering state contractors with 500 or more employees on January 1, 2009; state contractors with 100 to 499 employees and private employers with 100 or more employees on July 1, 2009;  all state contractors on January 1, 2010; and as of today, all employers state-wide must meet the E-Verify/Driver’s License requirement. Employers that fail to participate in E-Verify or do not hire only employees that possess or qualify for a South Carolina driver’s license (or other state license with similarly strict requirements) may be fined up to $1,000 for each violation.

As previously reported, South Carolina has audited roughly 1,500 companies, issuing 90 citations for various E-Verify failures. In almost all cases, the state has waived the penalty under the law’s first time violation exception as long as the employer begins using E-Verify or otherwise corrects the problem within 72 hours. Although the citations have been relatively low, the State expects this to pick up now that the law applies to smaller employers (particularly those in the hospitality and construction industry).

Mississippi

The Mississippi Employment Protection Act has also been implemented in stages, mandating E-Verify registration and participation for state agencies and political subdivisions, all public contractors, all public subcontractors, and private employers with two hundred fifty (250) or more employees starting July 1, 2008; private employers with at least one hundred (100) but less than two hundred fifty (250) employees on July 1, 2009;  and as of today, private employers with at least thirty (30) but less than one hundred (100) employees. The law will further expand to cover all employers in Mississippi on July 1, 2011.

Employers that do not comply with the law by the applicable effective date may have any existing state contract terminated and become ineligible for public contracts for three years, or have any license, permit, or certificate allowing the employer to do business in Mississippi suspended for a period of one year, or both.

Utah

Utah’s latest E-Verify law, the Private Employer Verification Act, requires all private employers who employ more than 15 or more employees as of July 1, 2010, to use E-Verify or a similar online verification process (SSNVS or other independent system) to check the employment eligibility of new employees. In a different twist, the law does not apply to a private employer of a foreign national on the H-2A or H-2B seasonal work visas. Although earlier versions of the law would have levied criminal penalties on employers for failing to comply, the final enrolled bill does not provide any penalties for noncompliance (an issue of contention among those in favor of greater E-Verify mandates). The law does provide a safe harbor though against any civil liability under state law in a cause of action for the hiring of an “unauthorized alien” if the employer complied with the E-Verify/SSNVS requirement.

Employers also have the option to voluntarily register with the state to certify compliance and pay a fee. The Department of Commerce publishes the list of all registered private employers on its newly created website, dubbed “Verify Utah.” As of July 1, there are presently 37 employers listed, most of them registering within the past few days. The State recently issued a Media Alert describing the law and the employer registry.

For a complete list of state and local E-Verify requirements, please check out our interactive E-Verify map at the LawLogix web site.