In today’s environment, it is important to understand the basics of verifying your employees’ legal status to ensure your business is compliant with applicable federal laws. This includes understanding the federal E-Verify website. While not federally required in many cases, many states do, in fact, require its use and most have their own procedures for verifying employee eligibility. Therefore, it is important to check with your local state to determine what other specific state statutes may be applicable to your employment practices.
Federal law has established an employment verification system (using the Form I-9) where a company attests that they have examined specified documents showing an employee’s identity and employment authorization. Reinforced Earth Co. v. Workers’ Comp. Appeal Bd., 570 Pa. 464, 810 A.2d 99 (2002). “E-Verify” is the online system (website) created and operated by the United States Department of Homeland Security to aid in this process. (www.e-verify.gov/)
Specifically, the federal website uses an employee’s Form I-9 information and compares it against records available to the U.S. Department of Homeland Security and the Social Security Administration to determine eligibility to work. Employers that use E-Verify do more than review the documentation that an employee has submitted; they receive some verification from the federal government as to the authenticity of that documentation. (Kendoll v. Rosenblum, 358 Or. 612, 370 P.3d 1245 (2016).) Your company may want to use this system to ensure their employees’ citizenship and right to work in the United States. In fact, your company may be required to use the website under their state laws. The employer using the system submits a request based on employee-provided information (like the Form I-9 process) and receives either a confirmation or a tentative non-confirmation of the employee’s authorization to work. If your business uses the system, it creates a rebuttable presumption that your business did not violate federal immigration laws, even if it later turns out you had hired an unauthorized alien.
Businesses who fail to comply with the verification requirements may face civil penalties, and employers that engage in a pattern or practice of violations may even face criminal liability. (Reinforced Earth Co. v. Workers’ Comp. Appeal Bd., 570 Pa. 464, 810 A.2d 99 (2002).)
Furthermore, Immigration and Customs Enforcement (“ICE”) is authorized to bring charges against noncompliant employers, and civil fines may be imposed on all unauthorized workers; also, pattern-or-practice violations can be criminally prosecuted with potential imprisonment. (Chamber of Commerce of the United States v. Whiting, 563 U.S. 582, 131 S. Ct. 1968 (2011).) Federal law also makes it unlawful for a person to knowingly use or provide counterfeit, altered, forged, or falsified documents to satisfy an employer’s verification (attestation) requirements. There is a “good faith” compliance defense (for the Form I-9 document requirements), an employer may use as an affirmative defense, if charged with a violation of 8 U.S.C.S. § 1324a. (Chamber of Commerce of the United States v. Whiting, 563 U.S. 582, 131 S. Ct. 1968 (2011).)
Complicating matters is the fact that in addition to verification and work-authorization rules, federal law imposes fines for unfair immigration-related employment practices, including discrimination based on citizenship or national origin. (Chamber of Commerce of the United States v. Whiting, 563 U.S. 582, 131 S. Ct. 1968 (2011).) So, the system (and your employment practices) should strictly be based on eligibility to work and not based on a person’s citizenship or national origin in and of itself. It’s a tightrope.
Federal immigration laws do not necessarily require employers to use the E-Verify website in most cases and it is sufficient for federal purposes that an employer review certain documents, complete Form I-9, and not knowingly hire an unauthorized alien. (Kendoll v. Rosenblum, 358 Or. 612, 370 P.3d 1245 (2016).)
There are some exceptions to the voluntary nature of E-Verify at the federal level. See e.g. Lozano v. City of Hazleton, 620 F.3d 170 (2010) (employers who have previously violated the Immigration Reform and Control Act (IRCA) may be required to use E-Verify)
By and large, federal laws do not require the use of the E-Verify website for employers per se, but they do require the company to have employees complete an I-9 Form and not knowingly hire an unauthorized alien. Many states, however, require E-Verify website use and have their own additional regulations and procedures. Many of these state laws are based on the size of the company. Some states even prohibit the use of the E-Verify website. Consequently, it is imperative to check with your local state laws to ensure your compliance with them.
Arizona’s Legal Arizona Workers Act of 2007, for example, requires that every employer, after hiring an employee, verify the employee’s employment eligibility by using E-Verify. (Chamber of Commerce of the United States v. Whiting, 563 U.S. 582, 131 S. Ct. 1968 (2011).) Under Arizona law, proof of verifying employment authorization through E-Verify creates a rebuttable presumption that an employer did not knowingly employ an unauthorized alien. (A.R.S. § 23-212. )
In North Carolina, private sector employers with 25 or more employees are required to use the federal E-Verify program to verify the work authorization of newly hired employees. Furthermore, employers must retain the record of verification for the duration of the employee’s employment and for one year after the employee’s separation from the company. (N.C. Gen. Stat. § 64-26.)
In Florida, the E-Verify requirements for employers are governed by Fla. Stat. § 448.095. Effective July 1, 2023, it requires private employers with 25 or more employees to use the E-Verify system to verify the employment eligibility of new hires and to certify their compliance with E-Verify annually. Most other states have similar laws which either require the federal E-Verify website use or have other basic employment documentation requirements. California is in the minority in actually prohibiting the website’s use.
In California, except as required by federal law or as a condition of receiving federal funds, it is actually “unlawful for an employer, or any other person or entity to use the federal electronic employment verification system known as E-Verify to check the employment authorization status of an existing employee or an applicant who has not been offered employment.” (Cal. Labor Code § 2814.) As you can see, knowing your local state laws is, therefore, important.
The best advice is to check your local state’s requirements, compare them against the size of your company, and determine whether you’re required to use E-Verify or if other documentation and recordkeeping requirements are needed for your company under their applicable state laws. In the end, regardless of the use of the website and your location, employers must have employees complete an I-9 Form and not knowingly hire an unauthorized alien.
Brian Edlin, Esq.
Brian Edlin, Esq. is a partner in the Firm of Jordan Price Wall Gray Jones & Carlton, PLLC in Raleigh, North Carolina. Brian has a broad-based real estate and construction law practice representing restoration companies, contractors and others in the real estate and construction industries. Brian is a Fellow in the College of Community Association Lawyers and American College of Real Estate Lawyers. Brian is a Member of the Restoration Industry Association and an Adjunct Professor at both Campbell University and Texas A&M University. He may be reached at 919-828-2501 or bedlin@jordanprice.com
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