By Bruce E. Buchanan*

Recently, the Tennessee Department of Labor and Workplace Development (TDLWD) has substantially increased their inquiries/investigations under the Tennessee Lawful Employment Act (TLEA). It is unclear why this has occurred.

Requirements of Tennessee Lawful Employment Act

First, let me remind you of the requirements set forth in the TLEA. For employers with six or more employees, one must participate in E-Verify or copy and maintain one of 11 documents – such as driver’s license, permanent resident card, U.S. Passport, Employment Authorization Document (EAD), birth certificate, naturalization certificate, and a few other obscure documents. Additionally, the TLEA requires an employer to retain one (1) of the 11 documents for non-employees (“any individual, other than an employee, paid directly by the employer in exchange for the individual’s labor or services.”)

A company does not utilize E-Verify, it must retain one (1) of the 11. If an employer receives a Request for Information under TLEA, one must provide one of 11 designated documents or a copy of a case verification report from E-Verify, if one is using E-Verify, of those employees hired after January 1, 2013. An employer should not supply I-9 forms to the TDLWD.

This law is totally distinct from federal law, which is enforced by Immigration and Customs Enforcement, and requires an employer to complete an I-9 form for every employee that is hired. Under federal law, an employer is not required to copy and maintain any documents except if one utilizes E-Verify, one must copy and maintain a List A document - U.S. Passport, U.S. passport card, Permanent Resident card, or EAD.

How do TLEA Inquiries arise?

It appears these TLEA inquiries arise under one of four situations. First, a complaint is filed with the TDLWD alleging a violation of TLEA. Second, TDLWD initiates a Request for Information under the TLEA while in process of conducting an investigation on another matter that an individual/worker has filed a complaint under the Wage Regulations Act or similar law.

Third, TDLWD initiates an initial inspection under the Child Labor Act, which provides the right to enter premises to check for any violations without a complaint. After conducting a short inspection looking for child labor at the employer’s premises, the TDLWD issues a Request for Information under the TLEA. This appears to stretch the limits of the TLEA’s language that the TDLWD must initiate a TLEA inquiry while conducting another inquiry/investigation/inspection.[i] If the inspection under the child labor law only lasts 10 to 15 minutes, does that give the TDLWD right to inquire under TLEA?

Fourth, the TDLWD initiates a Request for Information under the TLEA without any underlying inquiry/investigation on another statute. This appears to be in direct violation of the TLEA.

Takeaway

Employment lawyers representing employers in Tennessee should be aware of this growing trend at the TDLWD. Although your clients may be fully abiding by the TLEA, it may be a good idea to remind them of this recent law and increased enforcement. It can particularly confusing for employers who do not use E-Verify and previously did not retain any underlying document(s) listed on the I-9 form.