2011 STATE LAWS ADDRESSING E-VERIFY

2011 States Laws Addressing
E-Verify

 

Prepared by Brooke Meyer, Fall Fellow, NCSL Office of State-Federal Relations
November 23, 2011

In 2011, twelve states addressed E-Verify: eleven through legislation and one state (Florida) through an executive order. Ten states implemented the mandatory use of E-Verify: Alabama, Florida (executive order), Georgia, Indiana, Louisiana, North Carolina, South Carolina, Tennessee, Utah and Virginia.  Two states enacted laws that do not require E-Verify. California’s new law prohibits states and localities from mandating the use of E-Verify, and North Dakota has instructed its Legislative Management to conduct a feasibility study.

Each state determined whether all or some public employers, contractors, subcontractors, and private employers are required to use the program. Seven states require all employers, public and private, to participate in E-Verify: Alabama, Georgia, Louisiana, North Carolina, South Carolina, Tennessee, and Utah. Four require only public agencies and contractors to use the system: Florida, Indiana, Louisiana, and Virginia. Georgia exempts employers with fewer than 11 employees; North Carolina exempts employers with fewer than 25 employees and seasonal employers; Tennessee exempts employers with fewer than 6 employees; and Utah exempts employers with fewer than 15 employees who work less than 20 calendar weeks.

Alabama, Indiana, Louisiana, South Carolina, Utah, and Virginia have specific dates of implementation for E-Verify use, while Georgia, North Carolina and Tennessee will phase in the program. By January 1, 2013, mandatory E-Verify use will be effective in all ten states. Most of the laws invoke penalties through the issuance of fines and temporary suspension of business licenses, but in Alabama, employers are subject to permanent revocation of their license upon their second violation of the law, and in Georgia, upon their third.

Brief summaries of 2011 E-Verify legislation are below.

Alabama HB 56, Act No. 2011-535

Effective Date

April 1, 2012

Requirements

Every employer, contractor, and subcontractor must enroll and participate in the E-Verify program.

Penalties

CONTRACTORS AND SUBCONTRACTORS

First Violation:

The contractor or subcontractor must terminate all unauthorized aliens currently under his/her employment and file a sworn affidavit with the district attorney within three days.

Any applicable business licenses or permits may be suspended for not more than 60 days. The contractor or subcontractor must submit a sworn affidavit stating that s/he is in compliance with the law, and his/her suspension will be lifted not more than one day after submission of the affidavit.

Subsequent Violations:

Any business licenses or permits may be permanently revoked.

Exception:

Contractors and subcontractors who have received an affidavit in good faith from a subcontractor stating that s/he is enrolled and participating in E-Verify.   

PRIVATE AND PUBLIC EMPLOYERS      

            First Violation:

The employer must terminate all unauthorized aliens currently under his employment and file a sworn affidavit with the district attorney within three days.

Any applicable business licenses will be suspended for not more than ten days. The employer must submit a sworn affidavit stating that he is in compliance with the law, and his suspension will be lifted not more than one day after submission of the affidavit. The employer will be on a three year probationary period.

Second Violation:

All licenses held by the employer specific to the business location where the unauthorized alien was employed shall be permanently revoked.

Subsequent Violations:

All licenses held by the employer throughout the state shall be permanently revoked.

 


California AB 1236, Chapter No. 691

Effective Date

October 9, 2011

Requirements

States and localities are prohibited from mandating the use of E-Verify "except as required by federal law or as a condition of receiving federal funds." Inaccuracy concerns, increased costs and administrative burdens, and high state unemployment rates are cited as reasons mandatory E-Verify use would not be in the best interest of the state.

 


Florida Executive Order 11-116

Effective Date

May 27, 2011

Definitions

Contractor and subcontractor requirements apply to any person who has contracts “for the provision of goods and services to the state in excess of nominal value”.

Requirements

All state agencies, contractors and subcontractors are required to register and participate in E-Verify. Private employers are encouraged to use E-Verify.

This order clarifies and supersedes Florida Executive Order 11-02.

 


Georgia HB 87, Act No. 252

Effective Date

Every private employer who has 500 or more employees shall register and participate in the E-Verify program by January 1, 2012.

Every private employer who has 100-499 employees shall register and participate in the E-Verify program by July 1, 2012.

Every private employer who has 11-99 employees shall register and participate in the E-Verify program by July 1, 2013.

Definitions

An employee is defined as a person who is employed to work 35 or more hours per week.

A contractor is defined as a “person or entity that enters into a contract for the physical performance of services with a public employer.”

A public employer is defined as every department, agency, or instrumentality of the state.

Requirements

Every public employer shall register and participate.

A public employer cannot enter into a contract with a contractor for physical labor or services unless the contractor registers and participates in E-Verify, as evidenced by a notarized affidavit; the same applies to subcontractors and sub-subcontractors.

If a contractor does not hire employees or sub-contractors, he can provide to the employer a personal state-issued identification card which, prior to issuance, has verified lawful immigration status.

Every private employer employing more than ten employees shall register and participate.

            Participation in or exemption from E-Verify shall be determined by the number of employees that were employed by the private employer on January 1 of the year the affidavit stating exemption or participation is filed.

Penalties

First Violation

A contractor, subcontractor, or sub-subcontractor in violation will be listed on a state official website, with details as to the violation.

Subsequent Violations

Any contractor, subcontractor, or sub-subcontractor shall be prohibited from bidding on and entering any public contract for a 12-month period following the date of the violation.

 


Indiana SB 590, Public Law No. 171-2011

Effective Date

July 1, 2011

Definitions

A business entity includes self-employed persons who have one or more employees, partnerships, corporations, contractors, and subcontractors.

Requirements

State agencies and political subdivisions must register and participate.

A contractor or subcontractor may not knowingly employ an unauthorized alien.

Penalties

If a contractor or subcontractor is found to be in violation, he must remedy the violation no less than 30 days after it was noted, or otherwise terminate his contract with the state agency or political subdivision.

 


Louisiana HB 342, Act No. 376

Effective Date

January 1, 2012

Requirements

Private employers are required to confirm by sworn affidavit that they are registered and participate in E-Verify, and that they will continue to make use of the program during the term of any contracts; the same applies to subcontractors.

Penalties

Violation shall result in ineligibility for any public contract for not more than three years after the violation is discovered.

 


Louisiana HB 646, Act No. 402

Effective Date

January 1, 2012

Requirements

Employees can provide identification information that proves their legal status in the United States in lieu of participation in E-Verify. If they are not able to do so, they shall participate in the E-Verify system.

Penalties

First Violation

Penalty shall be a fine of no more than $500 for each employed, unauthorized alien.

Second Violation

Penalty shall be a fine of no more than $1000 for each employed, unauthorized alien. (Health care facilities are exempt and will be penalized in accordance with licensing and license suspension statutes.)

Third Violation

Penalty shall be immediate suspension of the violator’s permit or license to do business for not less than thirty days nor more than six months, and a fine of no more than $2500 for each employed, unauthorized alien. (Health care facilities are exempt and will be penalized in accordance with licensing and license suspension statutes.)

 


North Carolina HB 36, Session Law No. 2011-263

Effective Date

Employers with 500 or more employees must register and participate by October 1, 2012.

Employers with 100-499 employees must register and participate by January 1, 2013.

Employers with 25-99 employees must register and participate by July 1, 2013.

Definitions

An employer is identified as any person, business entity, or other organization that employs 25 or more employees. State agencies, counties, municipalities, and other governmental bodies are excluded from this definition.

An employee is identified as any person who receives monetary or other compensation for services or labor provided.

Requirements

Counties and municipalities must register and participate.

Every employer who employs 25 or more employees must register and participate.

Seasonal, temporary employees who are employed for 90 or fewer days during a 12-consecutive-month period are not required to participate.

Penalties

First Violation

Within three days, an employer must file an affidavit stating that s/he has requested verification of work authorization from the employee. Employers that fail to do so will be fined $10,000, not to be affected by the number of employees in violation.

Second Violation

Employers that fail to submit an affidavit shall be fined $10,000 and an additional $1,000, not to be affected by the number of employees in violation.

Third Violation

Employers that fail to submit an affidavit shall be fined $10,000 and an additional $2,000 for each employed, unauthorized alien in violation.

 


North Dakota HCR 3045

Effective Date

April 6, 2011

Requirements

The Legislative Management shall conduct a study of the feasibility and desirability of mandatory E-Verify use for public and/or private employers. Findings and recommendations shall be reported to North Dakota’s Sixty-third Legislative Assembly.

 


South Carolina SB 20, Act No. 69

Effective Date

January 1, 2012

Requirements

All employers must register and participate. A private employer may employ a person provisionally until the person’s work authorization is verified.

Penalties

If a violation of Sections 41-8-20 (registering and participating in the E-Verify program) or 41-8-30 (knowingly or intentionally employing an unauthorized alien) is found, the United States Immigration and Customs Enforcement will be informed of suspected unauthorized aliens that are being employed and notify state and local law enforcement agencies of the employment of an unauthorized alien.

A violation is only considered as a second occurrence if the violation is in regards to the same unauthorized alien that was involved in the first violation.

SECTION 41-8-20 (E-Verify)

First Violation

The private employer must comply within three business days, unless it is deemed necessary to extend the time in which to comply. Failure to comply results in probation for one year.

Subsequent Violations

The employer’s license shall be suspended for at least ten (10) but not more than 30 days, except if the employer has not committed a previous violation within the previous three years, in which case the subsequent violation would be treated as a first violation.

“If a private employer has ever committed a violation of Section 41-8-30, the private employer's licenses must be suspended for at least ten days but not more than thirty days for any violation or subsequent occurrence involving a violation of Section 41-8-20.”

If a private employer engages in business during a time that his license is suspended, his license shall be revoked for no less than five years.

SECTION 41-8-30 (Employing unauthorized aliens)

            First Violation

A private employer’s license shall be suspended for at least ten but not more than 30 days.

Second Violation

A private employer’s license shall be suspended for at least 30 but not more than 60 days.

Third and Subsequent Violations

For third and subsequent violations of Section 41-8-30, a private employer’s license shall be revoked.

For a third violation, a private employer can apply for a provisional license after 90 days, provided that he: agrees to a probationary period of three years; has terminated the unauthorized alien; and has paid a reinstatement fee.

If a private employer engages in business during a time that his license is suspended, his license shall be revoked for no less than five years.

 


Tennessee HB 1378, Public Chapter No. 436

Effective Date

Private employers with 500 or more employees and governmental entities shall comply by January 1, 2012.

Private employers with 200-499 employees shall comply by July 1, 2012.

Private employers with 6-199 employees shall comply by January 1, 2013.

Definitions

An employer is defined as private employers and governmental entities.

A private employer is defined as any person who is required to report remuneration paid to six (6) or more employees.

An employee is defined as any person for whom an employer must complete a Form I9.

A non-employee is defined as any person who is not an employee and is paid directly by the employer for services or labor rendered.

Requirements

Employers must obtain from non-employees some form of identification that affirms legal status in the United States. Employers must obtain from employees the same identification as that of non-employees; if some form of identification is not available, the employee must enroll in and be verified by the program.

Penalties

The commissioner shall issue an initial order that state the penalties to be enacted if the employer does not remediate all violations. The commissioner shall issue a warning in lieu of penalty if the employer corrects all violations within 60 days of the initial order or if the commissioner determines there was no knowing violation.

First Violation

The employer shall incur a penalty of $500, plus a penalty of $500 for each employee or non-employee in violation.

Second Violation

The employer will incur a penalty of $1,000, plus a penalty of $1,000 for each employee or non-employee in violation.

Subsequent Violations

The employer will incur a penalty of $2,500, plus a penalty of $2,500 for each employee or non-employee in violation.

 


Utah HB 116, Chapter No. 18

Effective Date

On or before July 1, 2013

Requirements

A private employer employing 15 or more employees for 20 or more calendar weeks in one year shall verify each employee’s employment eligibility.

A public employer shall register with and use the program for each new employee.

Contractors shall register and participate in the program before entering into a contract with a public employer.

Contractors are responsible for registering and verifying individuals who work under the contractor’s supervision and direction. The same rules apply to other contractors and subcontractors who enter into a contract with the contractor.

Any contracts agreed upon prior to July 1, 2009 are exempt from this rule.

Penalties

Any employee not holding a valid permit is to be terminated.

First Violation

A penalty not to exceed $100 for each employed, unauthorized alien shall be imposed on the private employer.

Second Violation

A penalty not to exceed $500 for each employed, unauthorized alien shall be imposed on the private employer.

Third Violation

One or more applicable licenses shall be revoked from the private employer for a period not to exceed one year, or, if no applicable license is held, a penalty not to exceed $10,000 shall be imposed.

 


Virginia HB 1859/SB 1049, Chapter No. 573

Effective Date

December 1, 2013

Requirements

“Any employer with more than an average of 50 employees for the previous 12 months entering

into a contract in excess of $50,000 with any agency of the Commonwealth to perform work or provide

services pursuant to such contract shall register and participate.”

Penalties

Any employer, including contractors, found to be in violation shall be debarred from entering into a contract with any agency of the Commonwealth for up to one year. The employer shall be released from debarment upon registration and participation in E-Verify.

A contractor who fails to enroll and participate in E-Verify may be denied prequalification as described in the Code of Virginia Section 2.2-4317.

 

Prepared by:

Brooke Meyer, Fall Fellow, NCSL Office of State-Federal Relations
November 23, 2011