Georgia employers face July 1 E-Verify mandate

by Geetha Adinata

Yet another domino has fallen in the changing landscape of Georgia immigration law. Beginning today, all Georgia employers with more than 10 employees (as of January 1, 2013) must use the federal E-Verify system to ensure employees are authorized to work in the United States. E-Verify checks employees’ work authorization through Department of Homeland Security (DHS) and Social Security Administration (SSA) databases.

An E-Verify requirement was included in Georgia’s 2011 Illegal Immigration Reform and Enforcement Act, also known as HB 87. But another bill, SB 160, was signed into law this spring by Governor Nathan Deal and expanded the 2011 law. So as of today, all private employers with more than 10 employees and any public contractor that wishes to bid on state contracts must use E-Verify.

SB 160 mandates E-Verify use not only for public contractors providing labor on public projects but also to contractors providing services of any kind. (Attorneys are exempt from the mandate.) The law applies to contractors, subcontractors, and sub-subcontractors, meaning the E-Verify requirement has been expanded to thousands of small businesses that contract to provide labor or perform services totaling at least $2,500.

When HB 87 was passed in 2011, it set three deadlines for employers to use E-Verify:

• January 1, 2012, for employers with 500 or more employees;

• July 1, 2012, for employers with 100 or more but fewer than 500 employees; and

• July 1, 2013, for employers with more than 10 but fewer than 100 employees.

For purposes of calculating the number of employees, employers must include all employees working at least 35 hours per week as of January 1, 2013.

The 2013 law, SB 160, bars employers from bidding for public contracts if they don’t enroll in E-Verify. Also, local governments won’t grant or renew a private company’s business license or other government certificates or permits until the company submits an affidavit certifying its enrollment in the E-Verify program or claiming an exemption because it employs fewer than 10 employees.

To bid for a state contract, an employer must submit an affidavit that attests to its E-Verify enrollment and confirms that it will engage only subcontractors that submit the E-Verify affidavit. By virtue of contracts at every level of state government, thousands of private businesses in Georgia will be subject to mandatory E-Verify participation for new hires, regardless of size.

The new law is expected to have a major impact on Georgia businesses with large populations of unskilled workers (e.g., agriculture, tourism, hospitality, restaurants, and construction) and on smaller entities that provide professional services.

Bottom line

Today marks the final phase of the 2011 E-Verify law and ushers in the 2013 law that expands the E-Verify requirement to not only labor projects but also services in the public contracting realm. Previously, only public contractors providing construction-type services to the state were required to use E-Verify. Going forward, every public contractor performing any kind of service to the state, including subcontractors, must use E-Verify.

The DHS’s and SSA’s databases contain errors that may result in “false positives.” The new law could make it more difficult for businesses of all sizes to meet their labor needs and may cause delays in bringing in new talent. Therefore, you must carefully navigate the E-Verify and I-9 “safe harbor” provision to fully comply with federal employment and immigration laws.

Georgia employers are advised to review their employment verification policies and procedures immediately to ensure their I-9 and E-Verify practices are fully compliant. Without compliant I-9 and E-Verify practices, employers will face numerous issues in administering E-Verify since the system relies on information taken directly from the Form I-9.

Further, in today’s era of heightened government scrutiny of employers’ I-9 practices, suspect employment verification processes can expose employers to substantial civil penalties and even criminal sanctions in some cases. You can take steps now to put in place I-9 compliance measures, which could be used to support a good-faith defense to potential liability.

Geetha Nadiminti Adinata is a partner in Ford Harrison’s Atlanta office. If you have questions about this topic, you can reach her at gadinata@fordharrison.com.