To E-Verify or Not to E-Verify: That Will No Longer Be a Question for Some Tennessee Employers

Miller & Martin PLLC Alerts | May 18, 2016

by Megan Welton

Beginning in 2017, Tennessee will require employers with 50 or more employees to enroll in the E-Verify system for the purpose of verifying the citizenship or work authorization status of their workers. E-verify is an internet-based system operated by the Department of Homeland Security that confirms employment eligibility upon the entering of a worker's name and social security number.

The Tennessee Lawful Employment Act ("TLEA"), enacted in 2011, requires all employers with six or more employees to maintain evidence that they are hiring and employing persons who are authorized to work in the United States. Although coverage of the TLEA is based upon a company's number of employees, the TLEA also requires covered employers to verify contractors and other non-employees, whose services are paid for directly by the employer, in addition to all employees.

Currently, to satisfy the verification requirement, employers have the choice of either (1) enrolling in the E-Verify program or (2) collecting from the employee or non-employee one of eleven identification documents listed by the TLEA, such as a driver's license or birth certificate. Recent amendments to the TLEA, however, will no longer give employers with 50 or more employees an option regarding their method of documentation. Instead, the amendments require those employers to enroll in the E-Verify system as of January 1, 2017. Penalties for non-compliance include the following:

  • 1st offense – $500 penalty + $500 per employee or non-employee not verified or a copy of appropriate verifying documentation not maintained;
  • 2nd offense – $1,000 penalty + $1,000 per employee or non-employee not verified or a copy of appropriate verifying documentation not maintained; and
  • 3rd or subsequent offense – $2,500 penalty + $2,500 per employee or non-employee not verified or a copy of appropriate verifying documentation not maintained.

The TLEA allows first-time violators to receive a warning in lieu of a penalty, if the employer remedies the violation within 45 days, which is shortened from the previous 60-day deadline. The amendments also shorten the number of days that an employer has to remedy a violation from 60 to 45. Further non-compliance will result in a $500 civil penalty each day the employer fails to enroll in and use the E-Verify system.

To avoid fines, employers are advised to review their verification documentation to ensure compliance and also to enroll in E-Verify if they have not previously done so and are covered by the amendments referenced above based on their total number of employees. Instructions on how to enroll are available on the U.S. Citizenship and Immigration Services website.

If you have any questions about the amended TLEA or how it may affect your company, please contact Megan Welton or any other member of our Labor & Employment Law Practice Group.

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