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By Bruce Buchanan, Sebelist Buchanan Law
In a rare move that is helpful to employers in immigration compliance, Colorado repealed its requirement that its employers have to complete and maintain a separate affirmation form besides the I-9 form and maintain copies of documents presented for employment verification. The repeal is effective on August 10, 2016.
As we all know, the Federal law, Immigration Control and Reform Act, does not require an employer to copy and retain documentation presented for employment verification. However, that does not mean that it is not a good idea to copy and retain such documentation but that is always a hot debate between immigration compliance attorneys. In most instances, I favor copying and retaining the documentation for a variety of reasons.
This repeal is great news for Colorado employers because employers should not have to essentially complete duplicate forms for the same purpose.
The new law is silent on whether an employer must retain previously completed affirmation forms and I-9 documentation. Seemingly the best approach is to retain those documents for current employees and destroy the affirmation forms when an employee is terminated. As for retention of I-9 documentation, an employer needs to be consistent in whether it retains this documentation. Thus, it is probably best to keep the existing documentation until the employee is terminated and then apply the “purge” rule – retain the I-9 and documentation for three years from the employee’s date of hire or one year from the employee’s termination, whichever is later.
As for new employees hired as of August 10, 2016, a company could implement a new rule eliminating the retention of the documentation. If one does so, make sure the rule is in writing, preferably in your immigration compliance policy (if you don’t have one, you should retain competent immigration compliance counsel to draft one) and be consistent in its use. Lack of consistency, if based on citizenship status or national origin could lead to a complaint with the Office of Special Counsel (OSC) or the EEOC.
With Colorado’s repeal, Tennessee becomes the only state that may require retention of an I-9 type document. Under current Tennessee law, one must retain one such document or use E-Verify. As of January 1, 2017, E-Verify will become mandatory for all employers with 50 or more employees but those employers with less than 50 employees will still have to use E-Verify or retain one I-9 type document.
By Bruce Buchanan, Sebelist Buchanan Law
The Tennessee Legislature, with the Governor’s signature, has amended its non-mandatory E-Verify law to a mandatory E-Verify law, effective January 1, 2017.
In 2012, the State of Tennessee began to require large employers to use E-Verify or copy and maintain one of 11 identification documents, such as U.S. passport, permanent resident card, Employment Authorization card, driver’s license, and State of Tennessee ID card of all new hires. At the time of passage in 2011, there were a number of organizations opposing mandatory E-Verify, including the Chamber of Commerce. Beginning in 2013, the law expanded to cover employers with six or more employees; thus covering most employers in the State.
In the 2016 legislative session, it decided to revise E-Verify to make it mandatory for all new hires of employers with 50 or more employees. This portion of the statute is effective January 1, 2017. This change puts Tennessee in line with most other southern states, though the 50 or more employees is a higher number than other states.
As for penalties, if an employer fails to verify the work authorization of an employee, it will be fined $500 for a first violation, and moves upwards from there. If an employer refuses to comply with the State order, it faces a fine of $500 per day.
If any of the employees are undocumented, the State will suspend the employer’s business license until it complies with the state law – verify the employee is authorized to work through E-Verify.
The action by the Tennessee Legislature is somewhat unusual as the last state to pass mandatory E-Verify was North Carolina in 2012. Also, in 2012, Pennsylvania passed a law to add E-Verify for state contractors. These are the last states to pass E-Verify legislation.
The threshold of 50 or more employees seems to be a compromise to get additional support from the super-majority Republicans in the legislature, many of which have strong ties to businesses. By using the 50-employee threshold, the law will not affect an enormous number of state businesses and many of the larger employers, such as International Paper and Singer Sewing, already use E-Verify to authorize their new hires.
By Bruce Buchanan, Siskind Susser
Photo of Nashville, Tennessee
What started as a workers’ compensation case has resulted in an interesting decision from a chancery court judge in Nashville, Tennessee -- simultaneously revealing employer immigration violations and striking down a state immigration law.
Carlos Martinez, a native of Guatemala, was working in the United States earning $400 per week as an undocumented day laborer. On August 8, 2011, Mr. Martinez slipped and fell in wet grass while operating a lawn mower. The lawn mower ran over his arm and the blade severed his left elbow and forearm. More than three years after his injury, Mr. Martinez found himself in court -- up against his employer, the employer’s insurer, and the Attorney General for the State of Tennessee -- fighting his workers’ compensation claim and trying to prove that he was entitled to benefits despite his federal immigration status.
Mr. Martinez worked for Commercial Services of Pegram, Tennessee, performing painting and other general labor. According to the court, Commercial Services never required Mr. Martinez to fill out an employment application or any other forms such as an I-9 form, nor asked Mr. Martinez whether he was legally eligible to work in the United States.
State Immigration Law
According to court documents, Mr. Martinez lost a “significant portion of his arm below his elbow” in the lawn mower accident in 2011, and sustained a vocational disability of 84 percent to his left arm. A Tennessee state immigration law passed in 2009, “capped” Mr. Martinez’s recovery at 1.5 times his medical impairment rating because he was an undocumented worker – slashing his recovery to a vocational disability of 36 percent.
The Tennessee legislature’s stated intent in passing the law was to “preserve the tradition of legal immigration while seeking to close the door to illegal workers in the State of Tennessee and to encourage the employers of Tennessee to comply with federal immigration laws in the hiring or continued employment of individuals who are not eligible or authorized to work in the United States.” Tenn. Code Ann. 50-6-241(e).
Instead, what the trial court found is the law had the opposite effect -- making it less costly for employers to hire undocumented workers from a liability perspective, and providing a potential incentive for employers to circumvent the federal law.
More importantly, the court deemed the statute unconstitutional as a “state immigration policy” preempted by federal law. The court cited the U.S. Supreme Court decision in Arizona v. United States, 132 S. Ct. 2492, 2498 (2012) in which an Arizona state law that attempted “to achieve one of the same goals as federal law – the deterrence of unlawful employment,” involved a conflict in the method of enforcement and served as “an obstacle to the regulatory system Congress chose.” Id. at 2505.
Proposed State Civil Penalties under IRCA
Another important distinction made by the trial court was that the Tennessee law imposed civil penalties on employers “to be paid directly to the State of Tennessee”. It found this provision was expressly barred by the terms of the Immigration Reform and Control Act (IRCA) which preempts “any State or local law imposing civil…sanctions…upon those who employ…unauthorized aliens”. 8 U.S.C. § 1324a(h)(2).
The trial court struck down Tenn. Code Ann. 50-6-241(e) in its entirety, and Mr. Martinez was awarded future medicals and permanent partial disability benefits of approximately $30,000. It remains to be seen if the State of Tennessee will appeal the trial court’s decision.
ABOUT THE AUTHOR: Bruce Buchanan is an attorney with the law firm of Siskind Susser P.C. - www.visalaw.com - a full service U.S. immigration law firm representing employers and individuals nationwide for over 20 years. You can also follow Bruce on social media via Facebook and on Twitter @BuchananVisaLaw .
Updated 04-09-2015 at 03:27 PM by BBuchanan