E-Verify Update for Employers in GA, SC and TN

Transcription

1 E-Verify Update for Employers in GA, SC and TN Executive Summary Effective January 1, 2012, state law requires all TotalSource clients with employees in Georgia, South Carolina or Tennessee to register and participate in the U.S. Department of Homeland Security s Employment Eligibility Verification Program (E-Verify). The E-Verify system is an online employment verification system administered by the Department of Homeland Security and the Social Security Administration which provides prompt feedback regarding whether information presented by new employees matches government records. As your compliance partner, and as a service to impacted clients, TotalSource will administer E-Verify as your agent. Please review the details below for a summary of the key state law requirements and more information on your role and responsibilities under these requirements including submission of a Memorandum of Understanding. Georgia E-Verify Provisions The new law will require any covered employer seeking a new or renewed state or local business or professional license, organizational tax certificate, or similar license, to submit a standardized affidavit providing the employer s E-Verify registration number and attesting to its proper use as a precondition to licensing. The law directs the Georgia State Attorney General to develop and provide a Page 1 of 5

2 standardized form affidavit which may be used as acceptable evidence demonstrating the use of E- Verify. The form affidavit is available on the Attorney General s Department of Law website and may be accessed by clicking here. The affidavit should be retained at the worksite. Please note that clients who employ fewer than eleven employees should complete the Private Employer Exemption Affidavit. However, TotalSource will process all Georgia new hires through the E-verify program. E-Verify Contractor Provisions Georgia law currently requires E-Verify use by state contractors and subcontractors involving physical performance of services within Georgia, regardless of tier. The new law generally does not change these requirements but does require each contractor down the chain to submit upstream a standardized affidavit attesting to its E-Verify use, its E-Verify registration number, and its commitment to require such affidavit from downstream contractors for the physical performance of services in Georgia. The Georgia Department of Audits and Accounts has created form affidavits for this purpose. These form affidavits can be accessed by clicking here. South Carolina Beginning January 1, 2012, South Carolina employers may no longer confirm new workers employment authorization with a driver s license or state identification card. Rather, all South Carolina employers must enroll in the federal E-Verify program. Prior to this amendment to the South Carolina Illegal Immigration Reform Act, employers had the option of complying with the Act by requesting a driver s license or state identification card as an alternative to enrolling in E-verify. The new amendment renders this option void. TotalSource previously advised clients against the option due to a possible conflict with federal I-9 form requirements and is currently processing all new South Carolina new hires through the E-Verify program as an agent for our clients. Consequences of a Violation The Act imputes an employment license on all South Carolina employers. An employer who knowingly or intentionally employs an unauthorized alien violates the employment license. South Carolina will no longer impose civil penalties. Penalties for failure to comply with the Act include a probationary period, during which an employer must submit quarterly reports demonstrating compliance with South Carolina law. Subsequent violations result in the suspension or revocation of an employment license. During suspension, an employer may not engage in a business opened to the public, employ an employee, or otherwise operate. Page 2 of 5

3 Employers who are found to have violated the Act or suspected of employing unauthorized aliens must be reported to federal, state, and local law enforcement. In addition, the South Carolina Department of Labor Licensing and Regulation must publish a list of all employers found in violation of the Act. Tennessee The new law requires employers with employees in Tennessee to enroll in the E-Verify program and verify the work authorization status of new Tennessee employees using the E-Verify program. The effective date for TotalSource clients is January 1, Employers must also maintain a record of any results generated by the E-Verify program for that particular employee. We recommend that clients retain a copy of the results with the employee s I-9 form as follows: Case details can be accessed by clicking on the E-Verify Case Number, which is available in the E-Verify Dashboard, under the HR Tab in My TotalSource. After selecting the Case Number, you should print a copy of the screen as shown in the example below and keep a copy with the employee s I-9 form. Page 3 of 5

4 An amendment added just prior to the law s passage allows employers, in the alternative, to request and retain one of the following documents from the employee before employment begins: A valid Tennessee driver license or photo identification license issued by the department of safety; A valid driver license or photo identification license issued by another state where the issuance requirements are at least as strict as those in Tennessee, as determined by the department of safety; An official birth certificate issued by a U.S. state, jurisdiction or territory; A U.S. government-issued certified birth certificate; A valid, unexpired U.S. passport; A U.S. certificate of birth abroad; A report of birth abroad of a citizen of the U.S.; A certificate of citizenship; A certificate of naturalization; A U.S. citizen identification card; or Valid alien registration documentation or other proof of current immigration registration recognized by the U.S. Department of Homeland Security that contains the individual's complete legal name and current alien admission number or alien file number. While this list is extensive, it conflicts with the list of acceptable documents for form I-9 purposes. The list above is less broad than the list of acceptable documents for I-9 form purposes and, in fact, includes documents that are not presently acceptable under federal law (i.e., certificates of citizenship and naturalization). Accordingly, similar to our previous recommendation with respect to South Carolina s law, we do not recommend implementing this alternative and will process all Tennessee new hires through the E-Verify program as an agent for our clients. Non-employees The law imposes the document requirement on an employer s non-employees as well. Employers must request and retain one of the documents listed above for any non-employee individual with whom it contracts for labor. Under federal law, employers are prohibited from contracting with individuals they know to be unauthorized to work, but there is no affirmative requirement that employment authorization be verified. Consequences of a Violation Violation of the law with respect to both employees and non-employees may result in civil penalties ranging from $500 to $2,500, depending on whether it is a first or subsequent violation. In the case of a first violation that was deemed to have not been committed knowingly, an employer will be given 60 days to correct the violation before a final order of violation will be issued. Once a final order has been Page 4 of 5

5 issued, in addition to paying any assessed penalties, the employer must submit evidence of compliance within 60 days of the final order. Failure to do so may result in suspension of the employer s business license. Next Steps: Clients Must Confirm their Federal Contractor Status and Sign and Return a Memorandum of Understanding ADP TotalSource will administer E-Verify on behalf of clients as a designated agent. However, before ADP TotalSource can process a client s new hires through E-Verify, the client must take the following steps: 1) Please complete the attached online survey by clicking here to confirm if you are (or are not) a federal contractor as quickly as possible. This will allow us to properly set up your company in the E-Verify system. 2) Upon receipt of the above referenced questionnaire, TotalSource will send an with your company s Memorandum of Understanding ( MOU ) attached. Please note that submission of the MOU is required before TotalSource can act as your agent. This MOU has been created by the U.S. Department of Homeland Security ( DHS ) and no modifications are permitted by DHS. Please follow the steps listed in the to properly sign and return your MOU. 3) Once we receive your signed MOU, ADPTS will administer E-Verify on your behalf effective immediately. Please note that if a client has previously submitted an MOU to TotalSource (e.g. because a client was enrolled in E-Verify due to other legal requirements) then we will automatically process client new hires in GA, and TN through E-Verify effective 1/1/2012. As always feel free to contact Human Resources Business Partner if you have any questions. This Client Alert provides general information regarding its subject and may not be construed as providing legal advice concerning particular circumstances. Page 5 of 5