Tennessee Legislature Passes "Non-Mandatory" E-Verify Law
The Tennessee Legislature passed a state law, which initially would have required all employers in Tennessee to utilize E-Verify  for all new hires. However, the "Tennessee Lawful Employment Act" was amended, on the last day of the legislative session, to allow employers to accept and maintain a copy of a state-issued driver's license or identification, unexpired U.S. passport, permanent resident card, work authorization, birth certificate, certificate of naturalization, or a few other forms of identification in lieu of enrolling in E-Verify and verifying the work authorization status of each new hire. The Governor is expected to sign the bill.
If you think this sounds like the forms of documentation needed for I-9 verification, you are correct. The only real difference is the requirement to maintain a copy of the identification document. Under the federal Immigrant Reform and Control Act (IRCA), an employer is not required to maintain a copy of the presented documents from List A or Lists B and C.
However, the "in lieu of" clause in the Tennessee Lawful Employment Act does not mean an employer has the option to decide to use E-Verify on an employee-by- employee basis. Rather, under this legislation and federal law, if an employer signs up for E-Verify, it must use it for all newly-hired employees.
Another provision in the new legislation involves the use of a "non-employee providing labor or services" to an employer. A "non-employee" is defined as "any individual, other than an employee, paid directly by the employer in exchange for the individual's services." If you contract with an individual/non-employee, you must request and maintain a copy of one of the specified documents, such as state-issued driver's license or identification, unexpired U.S. passport, permanent resident card, work authorization, birth certificate, or certificate of naturalization.
The Tennessee Lawful Employment Act will be phased in, starting in January 1, 2012, depending on the size of the employer, though employers with five or fewer employees are exempt from the law. Employers with 500 or more employees and governmental entities must comply by January 1, 2012; employers with 200 to 499 employees by July 1, 2012; and employers with six to 199 employees by January 1, 2013. But, remember, the only required compliance that is different than existing federal law is the copying and maintaining the specified documentation and obtaining the specified documentation for a non-employee.
An employer violates the law by failing to receive E-Verify confirmation or to request and maintain a copy of one of the specified identification documents. An employer has a "safe harbor" and cannot be found to have violated this legislation by employing an employee without work authorization if the employer utilized E-Verify and received a confirmation or the employee appealed the tentative non-confirmation and the appeal has not been resolved. This "safe harbor" is not available for employers who copy and maintain an employee's driver's license or other specified identification documentation if the employee is found to be without employment authorization.
The penalties for violating Tennessee Lawful Employment Act are: (1) First offense - $500 penalty + $500 per employee or non-employee not verified or copy of documentation maintained; (2) Second offense - $1,000 penalty + $1,000 per employee or non-employee not verified or copy of documentation maintained; and Third offense - $2,500 penalty + $2,500 per employee or non-employee not verified or copy of documentation maintained
If an employer does not have Internet access and desires to use E-Verify, the State, through the Department of Labor and Workforce Development, will act as an employer's agent in registering and verifying the newly-hired employees through E-Verify.
Any "lawful resident" of Tennessee, or federal agency employee, may file a complaint with the Tennessee Department of Labor and Workforce Development (DOLWD), which will investigate complaints providing "satisfactory evidence" of a violation. This provision is an extension of the current law which only allows state or local officials to file a complaint alleging an employer's employment of an unauthorized worker.
An employer, under existing Tennessee law, may have a business license revoked or suspended based on a finding by the DOLWD that it employed an unauthorized worker. For the first offense, the employer's business license is suspended until it provides a sworn statement that it no longer employs illegal workers. An employer, who violates the law two or more times within a three-year period, shall have its business license suspended for at least one year.
1 E-Verify is an Internet-based verification system administered by the Department of Homeland Security and the Social Security Administration. E-Verify was established as part of the federal Illegal Immigration Reform and Immigration Responsibility Act (IRIRA).
Bruce E. Buchanan is the partner-in-charge of the Immigration Section of King & Ballow, Nashville, Tennessee, and a partner in the Labor and Employment Section. Mr. Buchanan represents employers in immigration, labor, and employment law, as well as individuals in immigration law. He graduated from Vanderbilt University School of Law in 1982. Mr. Buchanan authors a blog, which is located at www.kbimmigration.com/webline, which mainly covers immigration compliance issues. He also serves as the editor of Employment Law Comment, the Tennessee Bar Association's Labor and Employment Law Newsletter, and TBA's Immigration Law Section Newsletter. Mr. Buchanan may be reached at email@example.com or 615-726-5484.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.