New Missouri Law Requires Select Employers to Use E-Verify

Yesterday, Governor Matt Blunt signed legislation (HB 1549) aimed at curbing illegal immigration in Missouri. Under the new law, employers that knowingly hire or continue to employ unauthorized aliens to perform work in Missouri could face civil liability in state courts and lose their business licenses. (Note: This provision of the new law goes into effect on January 1, 2009). Although this conduct has long been prohibited under federal law, the new state law will allow investigation and enforcement by the Missouri Attorney General and the filing of a civil lawsuit in Missouri state court. The law also requires the following entities to participate in a federal work authorization program (currently known as “E-Verify”):

• Any business entity that applies for a contract or grant in excess of $5,000 with the state of Missouri or one of its political subdivisions or applies for a tax credit, tax abatement, or loan from the state of Missouri; and 
• All public employers.

Although private employers are not required to participate in E-Verify, the law encourages them to do so. Any employer that is enrolled in E-Verify will be afforded an “affirmative defense” to a charge that it has knowingly hired an unauthorized alien.   

The law specifically defines the following terms:

• “Employer” – any person or entity employing any person for hire within the state of Missouri. 
• “Knowingly” – when the employer is aware of the nature of the person’s conduct or the circumstances related to the person’s conduct or, as to the results of a person’s conduct, when the employer is aware that the person’s conduct is practically certain to cause specific results. 
• “Work” – any job, task, employment, labor, personal services, or any other activity for which compensation is provided.
• “Business entity” – any person or group of persons performing or engaging in any activity, enterprise, profession, or occupation for gain, benefit, advantage, or livelihood.    

The law requires employers to provide identity information regarding a suspected unauthorized alien to the Missouri Attorney General, upon the Attorney General’s request. Failure to comply with the request could result in the suspension of the employer’s business license or permit. If an employer receives notice from the Attorney General that the information provided reveals an unauthorized alien has been employed and the employer is enrolled in E-Verify, then the employer must, among other things, terminate the employee or submit additional information to the Attorney General. If an employer receives notice from the Attorney General that the information provided reveals an unauthorized alien has been employed and the employer is not enrolled in E-Verify, then the Attorney General is authorized to bring a civil action in the Circuit Court of Cole County, Missouri, against the employer for violations of the law. 

An employer found to be in violation of the law could lose its business license or permit for a period of 14 days for the first offense, one year for the second offense, and permanently for the third offense. In addition to these penalties, an employer that is a state contractor or grant recipient for an amount exceeding $5,000 or that is receiving state tax credits, tax abatements or loans, may have its contract terminated and be barred from doing business with the state for three years for the first offense and permanently for the second offense.

The law also provides that contractors are not liable under this law when their subcontractors are found to be in violation of the law if: (1) the contract between the parties affirmatively states that the subcontractor has not knowingly employed, hired for employment or continued to employ an unauthorized alien; and (2) the contractor receives a sworn affidavit from the subcontractor stating that the subcontractor’s employees are lawfully present in the United States.

Finally, the law provides that an employer that terminates an employee in accordance with the law will not be subject to liability under the Missouri Human Rights Act.     

Additional Information

If you have questions or need assistance on compliance with the new law, contact the Ogletree Deakins attorney with whom you normally work, a member of the firm’s Immigration Practice Group, or Client Services at clientservices@ogletreedeakins.com or by phone at 866-287-2576.

Note: This article was published in the July 8, 2008 issue of the Missouri eAuthority.