Georgia Governor Nathan Deal recently signed into law Senate Bill 160 (SB 160), a tough expansion of Georgia's 2011 Illegal Immigration Reform and Enforcement Act (HB 87 or the Georgia E-Verify law).
Executive Summary: Yet another domino has fallen in the changing landscape of immigration law. Georgia Governor Nathan Deal recently signed into law Senate Bill 160 (SB 160), a tough expansion of Georgia's 2011 Illegal Immigration Reform and Enforcement Act (HB 87 or the Georgia E-Verify law). The Georgia E-Verify law requires that private employers with 10 or more employees (as of January 1, 2013) start using the federal E-Verify system for new hires on July 1, 2013. Also starting July 1, 2013, SB 160 mandates the use of E-Verify not only for public contractors (including subcontractors and sub-subcontractors) providing labor to public projects, but also those providing services of any kind (except for attorneys). This new measure expands the E-Verify requirement to thousands of small businesses that are contracted to perform labor or services in excess of $2,499.99, ranging from public construction to information technology and accounting services.
Implementation of E-Verify in Georgia
The federal E-Verify program is a federal electronic online system that allows employers to confirm whether their new hires are legally authorized to work in the U.S. When HB 87 was passed into law in 2011, it set the effective dates for Georgia employers to use E-Verify in three phases:
January 1, 2012: Effective for employers with 500 or more employees.
July 1, 2012: Effective for employers with 100 or more, but fewer than 500, employees.
July 1, 2013: Effective for employers with more than 10, but fewer than 100, employees.
This final phase of HB 87 implementation commenced on July 1, 2013, when E-Verify enrollment became mandatory for all private employers with more than 10 employees. For purposes of calculating the number of employees, companies must include any employee working at least 35 hours a week as of January 1, 2013.
Impact of the New Law
The new law will bar a company from carrying out its business and bidding for public contracts if it does not enroll in E-Verify. Local governments will not grant or renew a business license or other government certificate or permit for a private business until it submits an affidavit certifying its enrollment in the E-Verify program or claiming exemption because it employs fewer than 10 employees. Under the new law, the E-Verify requirement flows down to all subcontractors and sub-subcontractors that provide either labor or services to a public employer. In order to bid for any contract with the Georgia government, a company must submit an affidavit that attests to its E-Verify enrollment and confirms that it will engage only subcontractors that submit the same E-Verify affidavit to fulfill the specific public contract(s). Thousands of private businesses in Georgia, by virtue of contracts at every tier and level of state contracts, will be subject to mandatory E-Verify participation for new hires, regardless of their number of employees.
Employers' Bottom Line
Starting July 1, 2013, the final phase of the 2011 Georgia E-Verify law took effect, requiring private companies in Georgia with more than 10 employees to use E-Verify. In addition, starting July 1, 2013, the state of Georgia substantially expanded the E-Verify requirement within the realm of public contracting. Previously, only public contractors performing construction type services for the state of Georgia were required to use E-Verify. Going forward, any public contractor, including every tier of subcontractor, performing any kind of service for the state of Georgia, not just construction type services, must use E-Verify to do business with the state.
The new law is expected to have a major impact on Georgia businesses, not only for those in industries that have large populations of unskilled labor, such as agriculture, tourism, hospitality, restaurant, and construction, but also those smaller entities that provide professional services, such as IT and accounting/audit.
The E-Verify system verifies employees' work authorization through both the Department of Homeland Security and Social Security Administration databases, which could contain errors resulting in "false positives." The new law could make it more difficult for both large and small businesses to meet their labor needs and may cause employers delays in bringing in new talent when they receive false positives from the E-Verify system. Employers therefore must carefully navigate the E-Verify and I-9 requirements to fully comply with federal employment and immigration laws.
Georgia employers would be well advised to review their employment verification policies/procedures immediately to ensure that their I-9, E-Verify and associated practices are fully compliant. Without compliant I-9 and E-Verify practices, an employer undoubtedly will face numerous issues in administering the E-Verify program since it relies on information taken directly from the Form I-9 and input into the online system. Furthermore, in today's era of heightened government scrutiny of employer I-9 practices, deficient employment verification practices can expose employers to substantial civil monetary penalties and even criminal sanctions in some cases. Employers can take steps now to put in place I-9 compliance measures, which could later be used to support the company's good faith compliance defense to potential liability.
If you have any questions about the law, please contact the author of this Alert, Geetha Adinata, gadinata@fordharrison.com, or the FordHarrison attorney with whom you usually work.