Brave New World in Tennessee: E-Verify

Following up on the news that the Tennessee legislature passed a new law - 'The Tennessee Lawful Employment Act' - ('TLEA') in an effort to require all employers to use the federal 'E-Verify' employment authorization system, we will address 5 specific areas of the new law. (Please see prior post of July 7, 2011 for an overview of the Law). The first topic is the 'E-Verify' requirement.

In actuality, this is as much about the Form I-9 process as it is E-Verify. Basically, once the law becomes effective for each employment sector (based upon size), an employer is required to either maintain copies of documents provided by the employee to prove employment eligibility - or use E-Verify to verify employment authorization. The document copies or authorization from E-Verify must be kept for either 3 years after the documentation is provided (or 'date of hire' for E-Verify) or 1 year following termination of employment, whichever is longer.

For those of you who work with the Form I-9, this all sounds familiar - but a little 'off'. For example, the Tennessee law limits the acceptable documents to an odd assortment of birth certificates and 'current immigration registration', etc. Although all of the listed documents appear to be on the list of I-9 approved documents, not all I-9 approved documents appear on the list of Tennessee approved documents. Thus, employers are faced with the peculiar problem of getting documents for the I-9 and then possibly seeking different documents for the TLEA requirements. Of course, to avoid a charge of discrimination, you should not request the employee to provide any specific document on either list; (see, recent U.S. Dept. of Justice settlement with Summit Steel Fabricators, Inc. for an idea of fines and penalties).

The alternative is to enroll in E-Verify. This, of course, is what the Legislature hopes you will do. Without going into details about the E-Verify process at this time, ultimately, you should not begin the employment of an employee until you verify that the employee is authorized to work through the E-Verify system, and maintain proof of this verification for 3 years after hire or 1 year after termination, whichever is later. The incentive, however, is that if it turns out that an employee that you have hired is actually not authorized to work, you can avoid the charge of having 'knowingly' hired an illegal alien by using E-Verify. This is the 'Safe Harbor' under the Tennessee law. Conversely, reliance simply upon keeping documents related to the I-9 process is an ineffective defense to the charge. And the distinction between a 'Safe Harbor' and a charge of 'knowingly' hiring an unauthorized employee is very damaging both financially and to your ability to maintain your license to conduct business in the State of Tennessee.

Finally, it should be noted that you are also required to determine work authorization - from non-employees (e.g. independent contractors) who perform services for you!

That will be a discussion for our next blog -