January 1, 2013 marked the beginning of a new year and new requirements for employers under the Tennessee Lawful Employment Act ("TLEA") and the Fair Credit Reporting Act ("FCRA").
Tennessee Lawful Employment Act
On January 1, 2013, the third phase of the TLEA, which modified Tennessee's immigration law to curb the hiring of illegal aliens went into effect, making the Act's requirements applicable to private employers with 6-199 employees. The requirements of the TLEA went into effect on January 1, 2012 for government employers and private employers with 500 or more employees and on July 1, 2012 for employers with 200 - 499 employees.
The TLEA requires employers to verify that all newly hired employees are eligible to work in the U.S. either (a) through the federal E-Verify program, or (b) by providing one or more of the following documents proving identity and work eligibility:
- A valid Tennessee driver license or photo identification license issued by the Department of Safety;
- A valid driver license or photo identification license issued by another state where the issuance requirements are at least as strict as those in this state, as determined by the department.
- An official birth certificate issued by a U.S. state, jurisdiction or territory;
- A U.S. government-issued certified birth certificate;
- A valid, unexpired U.S. passport;
- A U.S. certificate of birth abroad (forms DS-1350 or FS-545);
- A report of birth abroad of a citizen of the U.S. (form FS-240);
- A certificate of citizenship (forms N560 or N561);
- A certificate of naturalization (forms N550, N570 or N578);
- A U.S. citizen identification card (forms I-197 or I-179); or
- Valid alien registration documentation or other proof of current immigration registration recognized by the U.S. Department of Homeland Security that contains the individual's complete legal name and current alien admission number or alien file number.
In order to encourage the use of E-Verify, the TLEA provides a legal safe harbor to employers if a worker whose immigration status was confirmed through E-Verify is later found to be in the country illegally. This safe harbor is not available to employers who opt out of E-Verify and instead comply with the TLEA by obtaining one of the listed documents.
Employers must also establish work eligibility for "non-employees," such as 1099 independent contractors. The TLEA defines "non-employees" to include "any individual, other than an employee, paid directly by the employer in exchange for the individual's labor or service." Employers who contract the services of another business, as opposed to an individual, are not required to verify the work eligibility of those employees working for the business with whom they have engaged as a 1099 contractor. Independent contractors are not eligible for enrollment in E-Verify; therefore, employers must obtain one of the above-listed documents prior to the independent contractor beginning work for the employer.
The TLEA requires employers to keep and maintain copies of the required work eligibility documents for three years after the date of hire, or one year after the date of termination, whichever is longer. Penalties for non-compliance can be assessed by the Commissions of Department of Labor and Workforce Development. For violations of the Act's verification provisions, the Act authorizes a $500 penalty for a first offense; a $1,000 penalty for a second offense; and a $2,500 penalty for a third and all subsequent offenses. On top of these penalties, the Act authorizes, for a first time violator, an additional penalty of $500 per worker not properly verified; $1,000 per worker not properly verified for a second time violator; and $2,500 per worker not properly verified for any additional violations.
Fair Credit Reporting Act
Also effective January 1, 2013, employers will need to use new FCRA forms as part of their background check process. Responsibility for enforcing the requirements of the FCRA transferred from the Federal Trade Commission ("FTC") to the Consumer Financial Protection Bureau ("CFPB"). As a result, several of the forms required by the FCRA have been revised. The revised forms include:
- A Summary of Your Rights Under the Fair Credit Reporting Act (Appendix K of Title 12 Code of Federal Regulations, Part 1022)
- Notice to Furnishers of Information: Obligations of Furnishers Under the FCRA (Appendix M of Title 12 Code of Federal Regulations, Part 1022)
- Notice to Users of Consumer Reports: Obligations of Users Under the FCRA (Appendix N of Title 12 Code of Federal Regulations, Part 1022)
The requirements imposed by the FCRA on employers obtaining a consumer report on a current or potential employee or independent contractor did not change.
If you have any questions about this issue of Employment Law Alert, please contact any of the attorneys in our Labor and Employment practice.