Mississippi – Mississippi Employment Protection Act Signed Into Law

Governor Haley Barbour recently signed into the law the Mississippi Employment Protection Act (S.B. 2988) which requires employers to participate in E-Verify, the federal government’s voluntary employment verification program.   Under the new law, employers in the following categories would be required to use E-Verify for new hires after the following effective dates:

• July 1, 2008:  All Mississippi agencies and political subdivisions, all public contractors and private employers with 250 or more employees
• July 1, 2009:  Private employers with 100 or more employees
• July 1, 2010:  Private employers with 30 or more employees
• July 1, 2011:  All employers

Any employer that violates the new law is subject to sanctions including: 1) the cancellation of state or public contracts; 2) a debarment from state or public contracts for up to three years; and 3) the loss of its business license for up to one year.  The Act also makes it a felony for any person to accept or perform employment for compensation either knowing (or in reckless disregard) that the person is an unauthorized alien.  Upon conviction, a violator will be subject to imprisonment for up to five years, a fine not to exceed $10,000, or both. 

Employers may avoid liability if they hire workers through a state or federal work program that requires verification of the employee’s social security number and provides verification of the employee’s lawful presence in the U.S. in an employment-authorized immigration status.

In addition, the Act establishes a private cause of action for discrimination resulting from an employer firing an employee who is a U.S. citizen or legal permanent resident while knowingly retaining an unauthorized alien.   Employers that use E-Verify on the effective dates stated above are exempt from lawsuits under this new cause of action. 

Governor Barbour expressed concern that the Act could have “unintended negative effects” and agreed to work with legislators to make “technical changes.”  For example, the Act, as written, does not clarify whether private Mississippi employers with 250 employees nationwide but less than 250 workers employed in the state of Mississippi must use E-Verify for new hires effective July 1, 2008. 
 
Mississippi employers should take the following steps to ensure that they are in compliance with the Act:

• Enroll in the E-Verify program. Employers may register to participate in the E-Verify program at https://www.vis-dhs.com/employerregistration. At the time of registration, employers must accept an electronic Memorandum of Understanding (MOU) which requires the employer to make several promises to both the Department of Homeland Security (DHS) and the Social Security Administration (SSA).
• Create written policies to be followed by personnel submitting queries through the E-Verify program. Aside from the mandatory training from DHS and SSA, written policies for employee use of the E-Verify program should be developed to emphasize the importance of the following:

  The E-Verify program is to be used to verify new hires only after I-9s have been completed, not to pre-screen applicants or “re-verify” the employment eligibility of current employees.

  Adverse employment actions are not permitted when the E-Verify responds to a query with a tentative non-confirmation. Employees are allowed the opportunity to address issues that may have caused a tentative non-confirmation to occur.

  Conversely, if a confirmation of employment eligibility is received before the new hire’s start date, the employer may not accelerate the new hire’s start date or otherwise alter the previously agreed-upon terms and conditions of employment.

• Audit I-9 documents, policies and procedures. Auditing I-9 paperwork will assist employers to identify any potential issues and help ensure compliance with the Act.

If you would like further assistance on compliance with the Act or if you have other immigration-related questions, please contact Jay Ruby in our Immigration Practice Group, or contact our Client Services Department at 866-287-2576 or via e-mail at clientservices@ogletreedeakins.com.

Note: This article was published in the April 4, 2008 issue of the Mississippi eAuthority.