Are You Ready for the Full Implementation of Tennessee’s E-Verify Law?* - Articles

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Posted by: Christy Gibson on Nov 14, 2012

By Bruce Buchanan, Siskind Susser**

The last phase of the Tennessee Lawful Employment Act (TLEA) will be implemented on January 1, 2013 for Tennessee employers with six to 199 employees. Previously, the TLEA was effective for employers with 500 or more employees and governmental entities on January 1, 2012 and employers with 200 to 499 employees on July 1, 2012.

The Tennessee law is rather unique because an employer may enroll and use E-Verify for newly-hired employees, or it may accept, copy and maintain a state-issued driver’s license or identification, unexpired U.S. passport, permanent resident card, work authorization, birth certificate, certificate of naturalization, or a few other forms of identification from newly-hired employees. Thus, it is essentially a non-mandatory E-Verify law.

The documents which an employer may accept are redundant of documentation needed for I-9 verification.  However, the difference is the requirement to maintain a copy of the identification document.  Under the Immigration Reform and Control Act (IRCA), an employer is not required to maintain a copy of the presented documents from List A or Lists B and C.

A second unique provision in the law involves a “non-employee” providing labor or services to an employer.  A “non-employee” is defined as “any individual, other than an employee, paid directly by the employer in exchange for the individual’s services.”  If an employer contracts with an individual/non-employee, it must request and maintain a copy of one of the specified documents, such as state-issued driver’s license or identification.   However, a subcontractor, who is not an individual, is not covered by this provision under the definition of non-employee.

An employer has a “safe harbor” if it utilized E-Verify and received a confirmation or the employee appealed the tentative non-confirmation and the appeal has not been resolved. Thus, it will not be found to have violated the law. This “safe harbor” is not available for employers who copy and maintain an employee’s driver’s license or other identification if the employee is found to be working without employment authorization.

Any employer can hire a third party agent to conduct E-Verify checks. Employers, who can attest to lack of Internet access, may enter into agreement with a designated agent to verify new employees through the E-Verify program at no cost to the employer.

The TLEA is administered by the Tennessee Department of Labor and Workforce Development (TDLWD). It will investigate complaints filed with the Department by any lawful resident of this state or employee of a federal agency.

An employer violates the law by failing to receive E-Verify confirmation or to request and maintain a copy of one of the specified identification documents. The TDLWD shall issue a warning in lieu of all penalties for a first violation if the employer complies within 60 days of the initial order and it is determined it was not a knowing violation.

Otherwise, the penalties for the new law are: First offense  - $500 penalty + $500 per employee or non-employee not verified or copy of documentation maintained; second offense - $1,000 penalty + $1,000 per employee or non-employee not verified or copy of documentation maintained; and third offense - $2,500 penalty + $2,500 per employee or non-employee not verified or copy of documentation maintained.

If the employer fails to submit documentation of compliance, the TDLWD shall request an order requiring the appropriate local government with respect to business licensure to suspend the employer's license until the employer remedies the violation.  If there are subsequent offenses, the business license is suspended for one year.

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* This article was originally published on November 8, 2012 by LawLogix’s The I-9 and E-Verify Blog under the title, Successfully Implementing Tennessee’s E-Verify Law.

**Bruce E. Buchanan is an attorney at the Nashville Office of Siskind Susser, P.C.  He represents individuals and employers in all aspects of immigration law, with an emphasis on employer immigration compliance, as well as employers in employment/labor law matters. Mr. Buchanan writes a blog on employer immigration compliance located at http://blogs.ilw.com/immigrationcompliance/ and is a contributor toThe I-9 and E-Verify Blog (http://www.lawlogix.com/electronic-i9/) and Employment Law Strategist. He may be reached at bbuchanan@visalaw.com or (615) 345-0266.