TENNESSEE LAWFUL EMPLOYMENT ACT

On June 7, 2011, Governor Haslam signed into law the Tennessee Lawful Employment Act (“Act”). This Act requires all employers in the state, both public and private, to provide evidence that they are only hiring and employing persons who are legally in the country. Employers can satisfy the requirements of the Act by performing one of the following:

1. Enrolling in the E-Verify program and verifying the employment eligibility of all newly hired employees through E-Verify; or
2. Request from all newly hired employees a copy of one of the following documents:

• A valid Tennessee’s driver’s license or photo identification;
• A valid driver’s license or photo identification from another state whose license requirements are at least as strict as those in Tennessee;
• A birth certificate issued by a U.S. state, jurisdiction, or territory;
• A U.S. government-issued 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
• Any valid immigrant registration documentation, recognized by the U.S. Department of Homeland Security, that verifies the employee’s legal immigration status.

The Act also applies to independent contractors or other non-employee individuals that an employer pays directly for labor or services. But for these individuals, an employer cannot use E-Verify and instead must request valid documentation from the list above.

Even though the Act allows an employer to choose between using E-Verify or simply requesting documentation, it would be wise for employers to choose E-Verify. Under the Act, if an employer happens to hire an illegal immigrant that E-Verify cleared, then the employer will not be liable under the Act.[1] But an employer is not entitled to this defense if it relies on documentation submitted by the employee. Instead, the employer will have to prove its innocence with other evidence.

 

These employment verification procedures apply to the following groups of employers on the following dates:

 

1. January 1, 2012—governmental entities and private employers with 500 or more employees;
2. July 1, 2012—private employers with 200 to 499 employees;
3. January 1, 2013—private employers with 6 to 199 employees.

 

The Act is unclear as to whether an employer should count only the employees it has that are located in Tennessee or the total number of its employees, regardless of location. But because the law will apply to all employers with 6 or more employees by January 1, 2013, employers with a large number of employees outside of Tennessee should err on the side of caution and implement the Act in accordance with the appropriate phase-in date.

 

The Act mandates that employers maintain a record of the E-Verify report for 3 years after the date of the employee’s hire or for 1 year after the employee’s employment is terminated, whichever is later. Employers must maintain a copy of any documentation received for 3 years after the documentation is received or for 1 year after the employee’s employment is terminated, whichever is later.

 

An employer found to be in violation of the Act is subject to the following penalties: (1) a fine of $500 for a first violation, $1,000 for a second violation, and $2,500 for a third or subsequent violation;[2](2) an additional $500, $1,000, or $2,500, depending on whether it is the first, second, or third violation, for each employee not verified under the Act. After a fine is assessed, an employer then has 60 days to submit evidence to the Tennessee Department of Labor and Workforce Development showing that it has remedied the violation and is in compliance with the Act. If the employer does not comply within 60 days, then the employer’s business license will be suspended until the employer remedies the violation. Finally, the Department of Labor and Workforce Development will publicly post the name of any employer found to be in violation of the Act, along with a description of the employer’s violation, on the Department’s website.

 

 

[1]. This absolute defense only applies to the Tennessee Lawful Employment Act. It is not an absolute defense to federal immigration laws.

[2]. A warning, instead of a fine, will be issued for a first violation if the Department of Labor and Workforce Development finds that the violation was not a knowing violation and the employer complies with the remedial action the Department requests within 60 days of receiving notice of the violation.

 

For additional information on this Employment article, please contact:

 

Latosha Dexter

(901) 333-8101

ldexter@raineykizer.com

 

Source: Rainey, Kizer, Reviere & Bell, PLC

Welcome

 

 

Tags: employment