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EMPLOYMENT LAW ALERT

NORTH AND SOUTH CAROLINA STATUTES REQUIRES "E-VERIFY"

Statute as it relates to North Carolina

On June 24, 2011, North Carolina Governor Beverly Purdue signed into law a new statute for the first time requiring private employers in North Carolina to use the Federal internet-based immigration verification system known as “E-Verify”.

The new statute is descriptively titled “An Act To Require Counties, Cities, and Employers to use the Federal E-Verify Program to Verify the Work Authorization of Newly Hired Employees.” Session Law 2011-263 is available in full at http://www.ncga.state.nc.us/Sessions/2011/Bills/House/PDF/H36v8.pdf.

The new North Carolina statute requires employers to retain forms showing such E-Verify checks within the term of employment and for one year after employment ends. The NC Department of Labor is tasked to create a complaint form, enabling good faith anonymous complaints to be made by any person. The statute provides for a hearing and appeals under the NC Administrative Hearings Act. First violation brings a civil penalty of $10,000.00 (note, not “up to” that amount); second violation is $11,000.00, and third violation is $2,000.00 per employee. It does not on its face create a private civil cause of action.

Counties and municipalities must comply with the new law by October 1, 2011. Private employers of more than 500 employees must comply by October 1, 2012; 100 and 500 employees by January 1, 2013, and employers of between 25 and 100 employees must comply by June 1, 2013. Certain seasonal farm workers are exempt.

Statute as it relates to South Carolina

On June 27, 2011, South Carolina Governor Nikki Haley signed an illegal immigration reform bill into law. The new law which amends the 2008 South Carolina Illegal Immigration Reform Act, now requires that by January 1, 2012, all South Carolina employers regardless of size who are required by federal law to complete and maintain federal employment eligibility verification forms must register and participate in the federal E-Verify work authorization program to verify the work authorization of every new employee with three business days of hire. Repeated failure to comply with the law may result in the ultimate closure of the employer’s business as well as the imposition of reinstatement fees.   Senate Bill S20 is available in its entirety at http://www.scstatehouse.gov/cgi-bin/query.exe?first=DOC&querytext=S20&category=Legislation&session=119&conid=6538916&result_pos=0&keyval=1190020.

About E-Verify

“E-Verify” is a free internet-based program operated by the United States Department of Homeland Security in partnership with the Social Security Administration which allows participating employers to electronically verify the employment authorization of newly hired workers.   See www.uscis.gov/E-verify for additional information and registration requirements. In most instances an employer using the program can immediately confirm the identity and employment eligibility of newly hired workers. If there is a problem, the program provides instructions to help resolve the matter with the prospective employee. Other than in certain limited exceptions, employers must complete Form I-9 Employment Eligibility Verification with the employee before using E-Verify.

Additional Information

McNair Law Firm has experienced attorneys who focus on aspects of employment and labor law. If you have any questions, please contact the McNair attorney with whom you work.

This Employment Law Alert provides an overview of certain aspects of a specific court decision. It is not intended to be, and should not be construed as, legal advice for any particular fact situation.