Rose Immigration Law Firm PLC

Tennessee Lawful Employment Act

TENNESSEE TAKES ANOTHER STAB AT IMMIGRATION
By
Linda Rose, Esq. and Cheryl B. Williams, Esq.
Rose Immigration Law Firm, PLC

On June 7, 2011, Tennessee Governor Bill Haslam signed a new and sweeping immigrationrelated
law into effect – the Tennessee Lawful Employment Act.

This law represents an effort by the State of Tennessee to monitor the immigration status of
foreign workers and to curb employer use of undocumented workers. In short, the law requires
all employers with more than five workers to either keep copies of certain I-9 documents or
otherwise to enroll in and use the federal E-Verify database.

By way of background, the I-9 is a form that all employers must use to verify a new hire’s
identity and authorization to work in the U.S. An employer can accept only certain documents
in complying with the I-9 requirements. E-Verify is a federal program that allows an employer to
use a federal database to confirm an employee’s authorization to work in the U.S. E-verify does
not replace the I-9 form, however.

DOCUMENT REQUIREMENTS. Under the new Tennessee law, employers will be required to
keep copies of certain documents presented by a new hire (including independent contractors)
to comply with the federal I-9 requirement. These documents include a valid Tennessee driver’s
license or photo ID issued by the Department of Safety, a valid driver’s license or photo ID
issued by another state that has issuance standards as strict as Tennessee; an official birth
certificate issued by a U.S. state, jurisdiction, or territory, or a U.S. government-issued birth
certificate; a Report of Birth Abroad; a certificate of citizenship or naturalization; a U.S. citizen
identification card; or valid alien registration document. Tennessee’s document requirements
are stricter than the federal government I-9 documentation standard. The employer is required
to keep copies of these documents for three years after the date of hire, or one year after the
employee is terminated, whichever is later.

E-VERIFY AS AN ALTERNATIVE. As an alternative to requiring and maintaining copies of the
above documents for employees (as opposed to non-employee independent contractors), an
employer can opt to enroll in the federal government’s E-Verify program. The decision to opt
into E-Verify requires the employer to enter into a Memorandum of Understanding and to agree
to various aspects of federal government oversight, so this is not a decision to be taken lightly.
Even if an employer opts to use E-Verify, the employer must still maintain copies of the abovelisted documents for independent contractor workers. This is so because E-Verify can only be used for employee hires and not for non-employees.

WHO MUST COMPLY, AND WHEN? The law affects almost every employer in the State of
Tennessee. The only exception is employers with five or fewer employees. The law takes effect
on a staggered basis, depending on the size of the employer, as follows:

• January 1, 2012. Employers with 500+ employees and government entities
• July 1, 2012. Employers with 200 – 499 employees
• January 1, 2013. Employers with 6 to 199 employees.

PENALTIES FOR NONCOMPLIANCE:
The penalties for violation of the Act are stiff, to say the least. They are outlined below:

• First offense: $500 for the civil penalty, plus $500 per worker not verified
• Second Offense: $1,000 for the civil penalty, plus $1,000 per worker not verified
• Third or Subsequent Offense: $2,500 for the civil penalty, plus $2,500 per
worker not verified.

These are the monetary penalties only. Additional sanctions may be imposed for the employer
that knowingly misclassifies a worker in an attempt to avoid the requirements of the law.
Whether you agree or disagree with the new Tennessee law, whether you think it helps or
hinders our economy, whether you believe immigration is a federal or a state function,
employers must comply with the new law as outlined above. Do not hesitate to contact Rose
Immigration Law Firm at 615 321 2256 or by email at lroselaw@roseimmigration.com for
assistance with this law. We stand ready to help employers in all immigration-related legal
matters, especially compliance with the new Tennessee Lawful Employment Act.

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