On July 13, 2011, the Georgia Illegal Immigration Reform and Enforcement Act went into effect. Among other things, the Act requires employers to verify the employment eligibility of employees.
Under the Act, private employers with more than 10 employees must register and use the U.S. Department of Homeland Security’s E-Verify system, also known as the “federal work authorization program.” The verification requirement applies to all employees who work at least 35 hours per week under the employer’s supervision and whose wages are subject to payroll tax withholding. The verification requirement does not apply to true independent contractors whose compensation is documented by issuance of an I.R.S. Form 1099, rather than a W-2 form. Employers can enroll in the federal work authorization program on the Department of Homeland Security’s website.
The Act gradually phases in the E-Verify requirement for private employers based upon their size. The compliance deadline for employers with 500 or more employees was Jan. 1, 2012, while the deadline for employers with 100 to 499 employees was July 1, 2012. Employers with 11 to 99 employees must begin using E-Verify by July 1. Employers with 10 or fewer employees generally are not covered by the Act unless they are contractors, subcontractors or sub-subcontractors of public employers under the Act.
The Act prohibits public employers from entering into contracts for the “physical performance of services” with contractors who do not use E-Verify. Before considering a bid from a contractor for services, public employers must obtain an affidavit from the contractor or sub-contractor certifying compliance with the E-Verify system. Accordingly, employers with 10 or fewer employees who are covered contractors, subcontractors or sub-subcontractors under the Act will be required to use E-Verify. A form affidavit satisfying the Act’s certification requirements is available on The Georgia Department of Audits and Accounts’ website: www.audits.ga.gov.
To ensure private employers comply with the Act, counties and municipalities are prohibited from issuing or renewing business licenses, occupational tax certificates or other documents required to operate a business unless the business demonstrates that it is authorized to use E-Verify or exempt from the requirement because it has 10 or fewer employees. Additionally, the attorney general may investigate and bring a criminal or civil action to ensure compliance with this requirement. Form affidavits certifying E-Verify compliance or exempt status are available on the Attorney General’s website: http://law.ga.gov.
Employers should consult with their legal counsel to determine whether they are covered by the Act and to devise a strategy for complying with it and avoiding interruptions to the operation of their businesses.
Kenneth B. Hodges III, a partner in the law firm of Ashe Rafuse & Hill LLP, writes a periodic column on business law for The Albany Herald. He is the former district attorney for the Dougherty Judicial Circuit. He can be contacted at kenhodges@AsheRafuse.com.