Client Bulletin #391

6.5.08

For a printer-friendly PDF copy of this Client Bulletin, click here.

Governor Mark Sanford has signed the South Carolina Illegal Immigration Reform Act. This is sweeping legislation that, among other things, requires proof of the “lawful presence” of individuals before state and local governments can provide benefits, prohibits illegal immigrants from attending public institutions of higher learning, and makes it a crime to assist illegal immigrants in avoiding detection.

Most significant for employers are the employment verification provisions of the Act, which will take effect July 1, 2009, for private employers of 100 or more, and July 1, 2010, for private employers of less than 100 who are required to comply with federal law regarding documentation of employment eligibility.

Employment Verification

The employment provisions of the Act apply to private employers with 100 or more employees. It is unlawful under the Act for a covered employer to intentionally employ unauthorized aliens. Moreover, covered employers are required to verify employees’ work authorizations. Verification requires the employer to do the following:

  1. register and participate in the federal E-Verify system to verify the work authorization of all new hires within five business days after hire; OR
  2. employ only those individuals who, at the time of employment:

    a) possess a valid SC driver’s license or identification card; OR

    b) are eligible to obtain an SC driver’s license or identification card; OR

    c) possess a valid driver’s license or identification card from another state whose requirements are at least as strict as South Carolina’s. (The state Department of Motor Vehicles is responsible for developing and updating a list of states that satisfy this requirement.)

The legislation provides a clear incentive to employers to use the E-Verify system; employers who “in good faith” verify the immigration status of a new employee through E-Verify “shall be presumed” to be in compliance. The law further provides that private employers who elect to verify a new employee’s work authorization through E-Verify “shall provisionally employ a new employee until his work authorization has been verified.” Such employers must also “submit a new employee’s name and information for verification even if the new employee’s employment is terminated less than five days after becoming employed.” Of course, if the individual’s work authorization is not verified through E-Verify, then the employer cannot employ, continue to employ, or re-employ the individual.

Administrative Enforcement

The state Department of Labor, Licensing & Regulation is charged with investigating complaints against private employers. If LLR determines that an employer has violated this statute, it is required to (1) notify the federal Immigration and Customs Enforcement; (2) notify state and local law enforcement; and (3) assess an appropriate penalty against the employer. The penalty for failing to verify work authorization ranges from $100 to $1,000 for each violation. LLR may not, however, assess a penalty for a first occurrence if the employer complies within 72 hours. Any further violations will result in the assessment of a civil penalty unless the employer has had no violations in the previous five years, in which case the subsequent violation will be treated as a first offense.

More alarmingly, LLR will suspend the employment license of any private employer who knowingly employs an unauthorized alien, and the suspension will last from 10 to 30 days. During the suspension, the employer may not employ anyone. Before reinstatement of the license at the end of the suspension, the employer must demonstrate that the unauthorized alien has been terminated and must pay a reinstatement fee of up to $1,000. Additional violations may result in increased periods of license suspension and possible revocation.

As if that were not enough, LLR is required to publish on its website a list of all private employers who have been assessed civil penalties or whose licenses have been suspended or revoked. In addition, LRR will develop a statewide “random auditing program” for private employer inspections.

Judicial Enforcement

In addition to the tough administrative penalties, the Act provides a private cause of action for any employee authorized to work in the United States who alleges that the employer discharged him or her for the purpose of replacing him or her with a person the employer knows or should reasonably know is an unauthorized alien. The replacement must occur within 60 days, and the replacement worker must fill the duties and responsibilities that the employee vacated. Possible damages for such a violation include reinstatement, actual damages, and lost wages. Another significant incentive for using E-Verify is that the statute specifically provides that this cause of action will not arise against an employer who submits the necessary identifying information for all employees through the E-Verify program.

The S.C. Illegal Immigration Reform Act also has employment authorization requirements relating to public employers and employers who contract with a public employer. For a complete copy of this legislation, click here. For more detailed information about this statute or assistance with compliance, please contact an attorney in our Columbia or Greenville offices in South Carolina, or the Constangy attorney of your choice.

Constangy, Brooks & Smith, LLC has counseled employers, exclusively, on labor and employment law matters since 1946. The firm represents Fortune 500 corporations and small companies across the country. More than 100 lawyers work with clients to provide cost-effective legal services and sound preventive advice to enhance the employer-employee relationship. Offices are located in Georgia, South Carolina, North Carolina, Tennessee, Florida, Alabama, Virginia, Missouri, and Texas. For more information about the firm's labor and employment services, visit www.constangy.com, or call toll free at 866-843-9555.

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