Before 2011, Tennessee employers only had to worry about federal immigration law requirements for verifying employee eligibility to work.
Beginning in 1986, employers were required by federal law to have all newly hired employees complete a Form I-9 and provide one of several possible documents to prove U.S. citizenship or lawful presence in the United States. In 2007 the federal government began to promote use of its “E-Verify” employee verification system, which is an internet based system that employers can use without charge. Once enrolled, an employer can dispense with obtaining eligibility verification documents to confirm lawful employment status. An employer instead logs into the E-Verify system and inputs information provided by the employee from the Form I-9. The program compares the information provided on the employee’s Form I-9 with information maintained by the Department of Homeland Security and the Social Security Administration. The employer is then advised whether the employee is eligible for work under federal immigration law.
In 2011, Tennessee employers learned that in addition to complying with federal law immigration requirements, they had to contend with the newly enacted Tennessee Lawful Employment Act (TLEA). The TLEA currently applies to all Tennessee employers with 6 or more employees. It in large part duplicates federal law requirements (although there are some differences), but imposes significant monetary penalties under state law for non-compliance. Like the federal law requirement, the TLEA has always allowed employers a choice in how they go about verifying employee eligibility. They can either (1) obtain one of several possible employee verification documents from employees before commencing work and retain that documentation in the employee’s personnel files, or (2) use the E-Verify system in lieu of obtaining the required verification document.
In April 2016, Governor Haslam signed into law several amendments to the TLEA. The most significant of those changes requires that all private employers in Tennessee with 50 or more employees use the E-Verify system exclusively to verify lawful employment status of employees hired on or after January 1, 2017. If you are a Tennessee employer still collecting required eligibility documentation as opposed to using the E-Verify system, you should begin making preparations to comply with this change in Tennessee law. I recommend that employers switch to the E-Verify process several months before the required date of January 1, 2017.
Employers changing over to the E-Verify system should take note, however, that they need to continue maintaining copies of employment verification documents for those employees hired prior to switching to the E-Verify system. Under the TLEA, employers must maintain copies of documents obtained to verify employment eligibility for 3 years following the date of hire. Failure to retain those documents or to maintain an accurate and legible copy of them can result in significant fines.
If you would like to speak to John Lawhorn about this or any other matter, he may be reached at (865) 546-9321.
John M. Lawhorn of Frantz, McConnell & Seymour, LLP practices extensively in the field of Labor and Employment law and regularly advises clients concerning federal and state laws pertaining to employment discrimination, retaliation and harassment, workplace policies, OSHA/TOSHA compliance, wage and hour compliance, labor/management relations, employment contracts and in many other aspects of the employment field. He regularly represents employer and employee interests in Tennessee State and federal courts on a wide variety of employment related matters.