Compliance Corner – State E-Verify and I-9 Laws

South Carolina: Audits Conducted, Citations Issued, But Initial Fines Waived

South Carolina’s 2008 law requiring employers to take additional steps to verify the work status of newly hired persons is in the process of being implemented (see the June 4, 2008 issue of the South Carolina eAuthority for a review of the law). The law’s requirement that employers either participate in E-Verify (the electronic employment eligibility verification system operated by United States Citizenship and Immigration Services) or review an approved driver’s license or state-issued identification card of newly-hired employees is being phased in. Currently private employers with 100 or more employees are subject to the additional verification requirement. After some initial aggressive enforcement tactics last summer, the South Carolina Department of Labor, Licensing and Regulations (LLR) has settled into a more defined process for auditing compliance with the law (see the September 28, 2009 issue of the South Carolina eAuthority).

More recently, reports indicate that LLR has been steadily auditing businesses and processing tips from the public about possible violators, with nearly 90 audits being performed in the month of January. Over 30 of the audited businesses were cited for violations. Fines for non-compliance have been issued including one for $42,500. However, the penalties are waived for a first-time violation and if corrective steps are immediately taken by affected employers. The audits will likely continue as the law is expanded to include all businesses on July 1, 2010. Employers are reminded to review current verification procedures to ensure compliance with not only federal law but also state law.

Oklahoma: Injunction Against E-Verify Requirement Reversed

Oklahoma’s Taxpayer and Citizen Protection Act of 2007 contains a provision requiring employers that contract with the state to use E-Verify, the Internet-based system operated by United States Citizenship and Immigration Services that allows employers to verify the employment eligibility of employees. This provision of the law was challenged as unconstitutional by several business organizations led by the U.S. Chamber of Commerce. The primary argument of the U.S. Chamber was that the law conflicts with the federal Immigration Reform and Control Act (IRCA) and therefore is preempted.

In June 2008, a federal district court found that the U.S. Chamber was likely to prevail on the merits and therefore issued a preliminary injunction against enforcement of the law’s E-Verify provision. On appeal, the Tenth Circuit Court of Appeals reversed the district court’s grant of a preliminary injunction against enforcement of the E-Verify provision. Thus, it appears that Oklahoma may soon be able to enforce the E-Verify provisions of the law.