“January 22, 2018? Why, that’s light years away! We’ll worry about that Real ID stuff later.” –State Officials, January 2016.
As 2018 approaches, the federal REAL ID Act has returned to the spotlight. You may even have seen a (hyperbolic and inaccurate) social media alert warning U.S. travelers that they’re all going to be required to get passports for themselves, their kids, and the family dog before they can fly to Disney World next year. (Not true.)
That’s because effective January 22, 2018, Phase 4 of the implementation of the 2005 law will begin. On that date, passengers with a driver’s license issued by a state that is still not compliant with the REAL ID Act and [from a state] that has not been granted an extension will need to show an alternative form of acceptable identification for domestic air travel in order to board flights.
Passengers with driver’s licenses issued by REAL ID-compliant states, or states that have been granted an extension, will be able to use their driver’s licenses or ID cards.
(Note: Beginning October 1, 2020, full implementation of the act is expected, and every air traveler will need a REAL-ID compliant license or another acceptable form of identification in order to board domestic flights.)
Despite the fact that the REAL ID Act has been law since 2005—in fact, it was one of the very first laws I ever covered in my time as a legal editor—many people were surprised to learn of this looming effective date. And it’s not without good reason; after all, implementation of the law has been repeatedly delayed to such an extent that some forgot about it altogether.
Plus, once implementation did begin, the first three phases had little effect on most citizens. Meanwhile, many individuals simply assumed that their states had taken or were taking the steps to become compliant, so learning that their state-issued forms of identification may eventually be insufficient for boarding a domestic flight has come as some surprise.
So, Remind Me What REAL ID Did?
In 2005, the REAL ID Act enacted recommendations of the 9/11 Commission to set uniform standards for the issuance of sources of identification, including state-issued driver’s licenses. For example, the facilities where licenses are produced must be physically secured, the licenses must contain antitampering and machine-readable features, and the process of verifying the identity of license applicants must be more robust.
The Act then prohibited federal agencies, including the Transportation Security Administration (TSA), from accepting noncompliant documents for “certain purposes,” such as accessing federal facilities, entering nuclear power plants, and, the real kicker, boarding federally regulated commercial aircraft.
Surprisingly, the REAL ID Act does not place requirements on the states—states’ participation is voluntary. However, because federal agencies (including the TSA) are/will be prohibited from accepting noncompliant identification, the inconvenience of a state-issued driver’s license no longer being acceptable for domestic air travel is strong incentive for states to “volunteer” to meet the federal REAL ID standards.
Why Aren’t States Compliant?
Currently, 26 states and the District of Columbia are fully compliant with the Act.
The remaining states are presumably working to become compliant, but just aren’t quite there yet. In those states, deadline extensions have been available provided that the state can meet certain progress requirements set forth by the Department of Homeland Security (DHS)—for example, a set plan and target date for compliance. The most recent round of extensions expired October 10, 2017, yet most states have since applied for and already been granted an additional year.
At the time of this article, New York, Louisiana, and Michigan were the only states still undergoing review for an additional extension. Thus, the January 22, 2018, deadline may also have little effect on domestic air passengers, as IDs from states that have been granted an extension will continue to be acceptable.
However, eventually the extensions will run out—DHS has stated that there are no anticipated changes to the enforcement schedule, so the 2020 hard deadline (after which no further extensions will be granted) will stand. (The most up-to-date information on states’ compliance and extensions can be found at https://www.dhs.gov/real-id).
As for why those states aren’t compliant, the specifics vary from state to state, but generally involve a mixture of cost and controversy.
When the Act first became law, it was heavily criticized as an unnecessary and heavy-handed effort to create a national database of citizens in the name of national security. At first, many states vehemently opposed the law amid concerns for citizens’ privacy, with over one third of states passing their own laws specifically restricting or banning the implementation of the Act.
Over time, some of this controversy faded, perhaps in large part due to the continual delay of the Act’s enforcement and a lost sense of urgency and fear. Once the Phase 4 deadline was initially announced in 2016, more states had already opted to fall in line.
Yet even for those states that have, albeit reluctantly, chosen to comply, there have been various other obstacles (and costs) as issuing agencies have been consolidated and reorganized, technology has been updated, security has been enhanced, and states have grappled with the appropriate balance of data collection and storage.
Finally, there is simply the matter of logistics—of 50 states and the District of Columbia maintaining the independence and autonomy (and affordability) of their own licensing and issuance systems while meeting the requirements of the federal standard. Some states got it right the first time, while others simply hit roadblocks along the way.
How Does the REAL ID Act Affect Employee Verification?
Most simply, it doesn’t—and shouldn’t.
A state driver’s license that is not compliant under the REAL ID Act may bear a notice such as “FEDERAL LIMITS APPLY” or “NOT ACCEPTABLE FOR OFFICIAL FEDERAL PURPOSES.”
This message means, yes, the driver’s license may not be used for those specified federal purposes discussed above.
However, the document is still an acceptable List B document for employment verification using Form I-9 if the I-9 requirements for that document have been met. In other words, if the driver’s license is unexpired and it contains the necessary photograph and/or identifying information such as name, date of birth, sex, height, eye color, and address, then the license’s failure to comply with the stricter REAL ID requirements do not invalidate it as a form of identification verification for employment.
Thus, if an employee with a non-REAL ID compliant driver’s license offers the document as a List B document, the license should be examined to determine whether it is reasonably genuine and relates to the employee, then the license should be accepted. Do not refuse the document or ask for an alternative form of identification.
It is likely that, come January 22, all noncompliant states will have been granted an extension, so domestic air travelers will still be able to use their driver’s licenses to board flights for at least another year.
Nonetheless, employers should still be familiar with the REAL ID Act primarily due to its effect—er, make that ineffect—on the employee verification process.
|Holly K. Jones, JD is a Senior Legal Editor for BLR’s human resources and employment law publications. She understands the existing and emerging needs and challenges of human resources professionals thanks to several years of experience managing, writing, and editing key legal and compliance publications for BLR. Prior to joining BLR, Ms. Jones worked for the Tennessee Legislature’s Office of Legal Services.
She graduated magna cum laude and Phi Beta Kappa with a BA in English Rhetoric and Writing, Political Science, and Psychology from the University of Tennessee in Knoxville, Tennessee, where she also received a 2001 Citation for Extraordinary Academic Achievement. She received her law degree from Vanderbilt University Law School and is licensed to practice law in Tennessee.
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