Nexsen Pruet, PLLC

The employment legal landscape certainly is changing, and this change is particularly visible at the federal level.  But while you await the Affordable Care Act’s fate with bated breath, don’t forget that your state legislators are also conducting their own makeover, so to speak. 

Two bills with a potentially significant impact on employers’ obligations regarding the federal E-verify program currently pending in the North Carolina House of Representatives could become law this year.

The E-verify program is an Internet-based system administered by the U.S. Citizenship and Immigration Services (USCIS). The program compares information from the Form I-9 to the records of the Department of Homeland Security, Social Security Administration, and Department of State.  North Carolina currently only requires employers with twenty-five or more employees to confirm their employees’ authorization to work through the E-verify program.  Individuals employed for a term of less than nine months are not considered employees for purposes of this requirement.

To use the program, the employer goes to the USCIS website to enroll and enters the information provided on the Form I-9 by the third business day after the new hire’s first day of work.  E-verify checks the information against its records and provides a response to the employer within seconds.  That result could be “Employment Authorized,” “Tentative Non-Confirmation,” or “Final Non-Confirmation.”

While the program has its advantages, including a legal presumption that an employer did not knowingly hire an unauthorized worker, many employers wish to avoid the process to the extent possible.  For starters, it is something of an administrative headache, requiring time and resources to train designated employees to re-enter information.  Second, a “Tentative Non-Confirmation” result could open employers up to new legal risks, particularly where the employer does not properly inform its employees about contesting a Tentative Non-Confirmation.  Third, the constant provision of information could trigger an I-9 inspection and fine.  Fourth, E-verify’s use requires ready access to the Internet, a luxury that some employers do not have.  Finally, the E-verify program occasionally makes mistakes, giving “Employment Authorized” results for individuals who are not authorized to work and “Temporary Non-Confirmation” or “Final Non-Confirmation” notices for individuals who are authorized to work.  These potential inaccuracies cause the most ulcers for employers, as they could expose businesses to legal action either for wrongful termination or for hiring an unauthorized worker.  It comes as no surprise, then, that a significant number of employers wish to avoid these complications.

That may not be possible for much longer, though.  If made law, the two aforementioned bills will significantly expand E-verify requirements.  The first bill, HB35, would require that all employers with five or more employees use the federal E-verify program, a much lower threshold than the current twenty-five-worker trigger.  This means that many businesses that have been blissfully unaware of E-verify will now have to familiarize themselves with the program.  The bill also eliminates an exception for temporary employees, but explicitly creates an exception for independent contractors and farm workers. 

The second bill, HB306, would require that all State government contractors and subcontractors E-verify their workers’ authorization to work.

In short, North Carolina employers may soon have to face the E-verify music.