E-Verify and Enforcement Efforts Continue to Expand
During the past year, numerous new state laws have been enacted requiring employers to use E-Verify (the electronic system to verify the eligibility of newly hired employees to work in the United States). At the federal level, the administration continues to expand audits of Form I-9s (“I-9 forms”) and has increased its level of I-9 discrimination-related enforcement as well. Amid this government activity, several members of Congress have introduced legislation that would require all U.S. employers to use E-Verify. This continued trend focusing on employer compliance shows that employers must remain vigilant about their employment eligibility verification procedures.
New State E-Verify Laws
The following is a summary of the new state E-Verify laws in 2011. Our complete E-Verify survey can be found at http://www.troutman.com/immigration/, with a full discussion of the 17 states with E-Verify-related laws and the E-Verify requirements for federal contractors. As a general rule, the state requirements apply only to new hires after the effective date of each law, while the federal contractor requirements apply to additional, existing employees who will perform work pursuant to the federal contract.
- Alabama – Public contractors must use E-Verify starting January 1, 2012, and all employers in Alabama must use E-Verify starting April 1, 2012.
- Florida – Effective January 4, 2011, and revised May 27, 2011, state agencies that are under the direction of the Governor must require that their contractors use E-Verify for new hires during the term of the contract.
- Georgia – All employers in Georgia with more than 10 employees must use E-Verify. This provision becomes effective on January 1, 2012, for employers with 500 or more employees; July 1, 2012, for employers with 100 or more employees; and July 1, 2013, for employers with more than 10 employees.
- Indiana – Employers entering into or renewing public contracts on or after July 1, 2011, must use E-Verify.
- Louisiana – Employers who bid on or contract with a public entity for the physical performance of services within Louisiana, and their subcontractors, must use E-Verify for all employees in the state, effective January 1, 2012.
- Minnesota – Minnesota’s E-Verify requirement expired on April 4, 2011, then was re-enacted effective July 22, 2011. Employers with state contracts for services worth more than $50,000 must use E-Verify.
- North Carolina – All employers with 25 or more employees must use E-Verify. This provision becomes effective on October 1, 2012, for employers that employ 500 or more employees; January 1, 2013, for employers that employ 100 or more employees; and July 1, 2013, for employers that employ 25 or more employees.
- South Carolina – Amended the existing law that included an alternative to E-Verify, and now requires all employers in South Carolina to use E-Verify by January 1, 2012.
- Rhode Island – On January 5, 2011, Rhode Island rescinded its requirement that state contractors use E-Verify; therefore, it is no longer in effect.
- Tennessee – All employers with more than 5 workers must use E-Verify or maintain copies of certain identification documents. This provision becomes effective on January 1, 2012, for employers with 500 or more employees; July 1, 2012, for employers with 200 or more employees; and January 1, 2013, for employers with 6 or more employees.
- Virginia – Expanded the E-Verify requirement from state agencies only to include contractors with the state who have more than an average of 50 employees for the previous 12 months and enter into a contract in excess of $50,000, effective December 1, 2013.
I-9s: The Deceptively Simple Form That Lands Employers In Hot Water
As you should be well aware, all employers are required to complete and retain I-9 forms for new hires. This deceptively simple, one-page form has landed many employers in hot water. Primarily, the I-9 regulations require employers to use I-9 forms to verify the employment authorization of all new hires. However, companies can incur substantial fines even for technical violations involving a completely legal workforce. In addition, the I-9 regulations prohibit document abuse and certain discriminatory practices. Companies trying to be vigilant about employment eligibility verification have often become overzealous, requiring more or different documents than are actually mandated by the I-9 form, resulting in an allegation of discrimination. For this reason, employers must be aware of these competing demands and properly train representatives responsible for the I-9 process.
To emphasize the importance of this issue, U.S. Immigration and Customs Enforcement (ICE) reached a historic level of enforcement in 2010, with a combined total of $50 million in financial sanctions in 2009 and 2010. Not only did the penalties from I-9 worksite enforcement actions increase 500%, the number of I-9 audits almost doubled, criminal prosecutions of employers reached a record-breaking number of 180, and 97 businesses were debarred (compared to 30 in the prior year). This high level of enforcement continues, with 1,000 new I-9 audits announced in February 2011 and another 1,000 announced in June 2011.
On the other side of the enforcement coin, the Department of Justice Office of Special Counsel (OSC) has been turning up the heat on employers engaging in discriminatory I-9 related practices. The OSC protects U.S. citizens and certain work-authorized individuals from employment discrimination based upon citizenship or immigration status, particularly as it relates to unfair documentary practices in the employment eligibility verification process, encompassing both the I-9 and E-Verify programs. The OSC has announced 12 settlements in 2011 for employers it alleged engaged in discriminatory practices, such as requiring more documents than necessary to complete the I-9 form—which is one of the most common errors we see when reviewing companies’ I-9 compliance. This number may seem small, but when compared to the fact that OSC announced only 1 settlement each in 2009 and 2008, and none in 2007, the increase in OSC activity is significant. Penalties included both civil fines and back pay (and reached $290,400 for one employer in Missouri).
What Should Employers Do?
So, how does a reasonable employer walk this fine line between verification and discrimination? Companies must reasonably ensure that the employees they hire are eligible to work, yet they must not request more or different documents than are required to establish a worker’s identity and eligibility to work or reject documents that appear to be reasonably genuine on their face. To accomplish this level of compliance, employers must establish thorough verification policies and ongoing training programs that achieve the delicate balance between these competing demands in the I-9 and E-Verify process. Specifically, employers should:
- Develop written I-9 policies (and E-Verify policies, if applicable) and conduct regular reviews to ensure policies are followed.
- Provide regular training for company representatives responsible for I-9/E-Verify completion.
- Conduct regular, independent audits of I-9 records.
- Treat all people the same when announcing a job, taking applications, interviewing, offering a job, verifying eligibility to work, hiring, or firing.
As the statistics and anecdotes show, worksite enforcement is not going away. Employers must equip themselves with the knowledge and training necessary to succeed if faced with a government audit or investigation. Starting with the steps outlined above will ensure you are on your way to a comprehensive level of compliance.
If you have questions about I-9 compliance, please contact Aimee Todd or Mark Newman in Troutman Sanders LLP’s Immigration group.