Recent Changes in State Law Regarding E-Verification

Minnesota, Mississippi, Rhode Island, Utah, and Virginia have recently enacted state laws intended to highlight the issue of illegal employment of unauthorized aliens. These are the most recent in an ever-growing list of state laws attempting to curb unauthorized employment in the United States. Please see http://morganlewis.com/documents/50StateSurvey_StateImmigrationLaws.pdf for a complete summary of state law on this issue.

Minnesota

Governor Tim Pawlenty issued Executive Order (EO) 08-01, which was published on January 14, 2008 and took effect on January 29, 2008. The Minnesota Department of Administration is charged with implementing the EO. Key provisions of EO 08-01 include a requirement that all companies awarded state contracts in excess of $50,000 verify the employment eligibility of newly hired employees through E-Verify, a requirement that the Minnesota executive branch use E-Verify, and a requirement that all “recipients of business subsidies” certify that they are in compliance with federal immigration laws governing the rights of individuals to work in the United States. Details on how the state plans to implement and enforce EO 08-01 are few; however, vendors and contractors of all tiers with state contracts in excess of $50,000 are required to execute a State of Minnesota – Immigration Status Certification, confirming the company’s obligation to complete E-Verify employment verifications “for all newly hired employees in the United States who will perform work on behalf of the State of Minnesota.”

Mississippi

The Mississippi Employment Protection Act was signed into law on March 17, 2008 and mandates E-Verify participation for Mississippi employers. The law will be phased in starting July 1, 2008 for employers with more than 250 employees in Mississippi. The law makes it a discriminatory practice to dismiss a U.S. citizen or permanent resident immigrant while retaining an employee who is in the United States illegally, and makes it a felony for an illegal immigrant to accept or perform employment. All state agencies, employers with contracts with the state, third-party employers, private companies that utilize third-party employees, and other private employers with more than 250 employees in Mississippi must comply by July 1, 2008. Private employers with fewer than 250 employees and without state contracts are phased in over the next three years depending upon the number of employees. Penalties for noncompliance include the cancellation of and ineligibility for state contracts for up to three years, and/or the loss of any license or permit to do business in Mississippi for up to one year. The statute’s definition of employee appears to limit the scope of the law to individuals hired to perform work within Mississippi, and to limit applicability to those employers who report income paid to employed or contracted personnel in Mississippi. Accordingly, large national employers with fewer than 250 employees actually in Mississippi do not appear subject to the July 1, 2008 date for the initial implementation of the law.

Rhode Island

On March 27, 2008, Governor Carcieri issued an executive order requiring state agencies and contractors doing business with the state to register for E-Verify. The order appears to require state agencies to create rules for the implementation of the order. There is no effective date in the order itself, and it does not contain any sanctions for failure to comply. Presumably the details will be defined and implemented by the state agencies according to Rhode Island administrative law requirements. At present there do not appear to be additional mandatory employer/contractor duties.

Utah

Utah SB 81 was signed into law on March 13, 2008, with an effective date of July 1, 2009. The law requires all public employers as well as their contractors of any tier to use an electronic employment eligibility verification system (either E-Verify or SSNVS) to verify employment eligibility. The requirement applies only to contracts entered into for the physical performance of services after July 1, 2009 and to employees hired after the law takes effect. The law is expected to face legal challenge prior to the effective date of July 1, 2009.

Virginia

Virginia House Bill 1298 was signed into law effective July 1, 2008. The law does not impose any additional employer obligations; however, it creates a state criminal offense for employers who essentially fail to fulfill their existing employment eligibility verification obligations under existing federal immigration law. In addition, Virginia House Bill 296 was signed into law, and authorizes regulatory boards to revoke state licenses, registrations, certificates, or authorizations in the event of a conviction for knowingly employing an unlawful worker.

How This Affects You

Employers must become increasingly vigilant to ensure their compliance with the growing patchwork of state laws related to employment eligibility verification. This includes employers whose workforce includes few if any foreign nationals. Federal laws and most state laws requiring employment eligibility verification apply to all subject employees, regardless of citizenship or nationality.

Morgan, Lewis & Bockius will continue to monitor the situation and will update you with any new information. If you have any questions about any of the issues raised in this Morgan Lewis Immigration Alert, please contact:

San Francisco
A. James Vázquez-Azpiri
415.442.1343
ajvazquez@morganlewis.com

Lance Nagel
415.442.1345
lnagel@morganlewis.com
 
Washington, D.C.
Eleanor Pelta
202.739.5050
epelta@morganlewis.com

Eric S. Bord
202.739.6040
ebord@morganlewis.com

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