On April 19, 2022, Tennessee Governor Bill Lee signed legislation lowering the employee threshold from 50 to 35 for employers to be required to use E-Verify concerning whether new hires are authorized to work. Since January 1, 2017, the Tennessee Lawful Employment Act (TLEA) has required employers with 50 or more employees nationwide to use E-Verify for new hires. 

Also, the new law amends the TLEA requiring an employer to:

[M]aintain an E-Verify case result for each employee that shows that the employee is authorized to work, whether on the E-Verify Quick Audit Report, the E-Verify User Audit Report, or the individual employee E-Verify case verification result. The E-Verify case result must be visible showing the work authorization status.

Additionally, the amended law includes several new provisions:

1. Protects employers from retaliatory discharge if the employee was not authorized to work and the employer was not aware that the employee is not authorized to work;
2. Employee does not have a cause of action for discrimination based on national origin if an employer discovers an employee is not authorized to work in the United States through E-Verify and discharges the employee based on those positive results; and
3. The Office of Employment Verification Assistance is created and if an employer does not have internet access, the Office shall, at no charge to the employer, enroll the employer in E-Verify or conduct work authorization status checks of the employer's employees by using E-Verify as long as the employer signs a prescribed form and completes paperwork required by E-Verify to permit the Office to provide assistance.

The portion of the law related to lowering the employee threshold is effective on January 1, 2023, while other portions of the law are effective immediately.

Currently, Tennessee’s 50-employee threshold is the highest of the eight states requiring employers to utilize E-Verify. The other states, Alabama, Arizona, Georgia, Mississippi, North Carolina, South Carolina, and Utah, have employee threshold from one employee to 25 employees (North Carolina).

Bruce E. Buchanan is the founding partner of Sebelist Buchanan Law PLLC located in Nashville and Atlanta, where he represents employers in immigration and employment/labor matters and individuals in immigration matters. Bruce received his J.D. in 1982 from Vanderbilt University. He is the co-author of The I-9 and E-Verify Handbook (2d ed. 2017) and writes a blog on employer immigration compliance matters located on Twitter - @buchananvisalaw. Bruce is the editor of TBA’s Labor & Employment newsletter. He may be reached at (615) 345-0266 or bbuchanan@sblimmigration.com.