There are various new laws in the State of Tennessee taking effect January 1, 2012 and our Tennessee business attorneys have been reviewing them to determine their impact on our clients. One of these laws that will impact the hiring practices of most Tennessee businesses is the Tennessee Lawful Employment Act. This Act requires Tennessee employers verify the eligibility of all new employees to work in the United States prior to employment. The Act initially takes effect on January 1, 2012 and will be phased in over time according to the business size. Employers may comply with this Act by one of two methods.
Employers may enroll in the Federal government's E-Verify program and verify the eligibility of new employees prior to employment by using the E-Verify program. E-Verify is a free work authorization verification service provided by the Department of Homeland Security. The advantage to using the E-Verify program is that if an employer hires an employee who is not eligible to work in the United States but has been cleared by the E-Verify program, the employer will not be liable under the Act. Records from the E-Verify program must be maintained for 3 years after the hire date of the employee or for 1 year after the employee's employment is terminated, whichever is later. The E-Verify program can be found here.
As an alternative to the E-Verify program, employers may request and maintain any one of the following documents prior to the employee beginning work:
- 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 United States state, jurisdiction or territory;
- A United States government-issued certified birth certificate;
- A valid, unexpired United States passport;
- A United States certificate of birth abroad;
- A report of birth abroad of a citizen of the United States;
- A certificate of citizenship;
- A certificate of naturalization;
- A United States citizen identification card; or
- Valid alien registration documentation or other proof of current immigration registration recognized by the United States Department of Homeland Security that contains the individual's complete legal name and current alien admission number or alien file number.
The Act also requires Tennessee businesses verify that non-employees, such as independent contractors, are eligible to work in the United States. Because the E-Verify program does not apply to non-employees, the employer must rely on one of the documents listed in the Act to verify eligibility of non-employees.
The Act initially applies to all governmental entities and private employers with 500 or more employees. On July 1, 2012 the provisions of the Act will apply to private employers with 200 to 499 employees and on January 1, 2013 the provisions of the Act will apply to all private employers with 6 or more employees.
The penalties for violating the Act are $500.00 for a first violation plus $500.00 for each employee or non-employee not verified. For a second violation the penalty is $1,000.00 plus $1,000.00 for each employee or non-employee not verified. And for third and subsequent violations the penalty is $2,500.00 plus $2,500.00 for each employee or non-employee not verified. In addition, the employer must submit evidence of compliance with the Act within 60 days of a finding that it is not in compliance with the Act or the Department of Labor and Workforce Development will request that the employer's business license be suspended.
Whether the Act applies to your Tennessee business on January 1, 2012 or at one of the later dates you should begin implementing procedures to comply with the Act. If you have any questions about the Act or other employment issues or need a Tennessee business lawyer call me at (615) 256-8880.
