www.electronici9.com Every year in January the National Retail Federation (?NRF?) holds its annual Convention and Expo, which is aptly named ?the Big Show,? drawing more than 22,000 retail professionals from around the world. While this year?s show was focused mostly on emerging technologies and trends in the industry, many of the US-based attendees expressed growing concern over the expansion of the E-Verify program and the steadily increasing likelihood of a Form I-9 paperwork audit. Why all the doom and gloom surrounding a ?simple? one-page form? According to the NRF, retailers operate more than 3.6 million U.S. establishments that support one in four U.S. jobs ? 42 million working Americans. When you factor in the retail industry?s high turn-over rate and the increasing likelihood of an I-9 audit, that?s a whole lot of I-9s and E-Verify cases to be concerned about! Retailer?s I-9 Challenge Employers in the U.S. must ensure that an I-9 is completed for all new hires in order to document that the individual is authorized to work in the U.S. E-Verify takes the I-9 process a step farther by confirming the employee?s work authorization electronically after checking government databases. Sounds pretty straight-forward, right? Well, the problem for many in the retail industry is that I-9 compliance (i.e., ensuring it?s done right) is entrusted to a wide variety of players ? from human resource managers to accountants to front-line managers. While each one of these roles can certainly handle the I-9 process, many in the field find it difficult to follow all of the procedures and keep up with changes amidst all of their other tasks. So inevitably, the I-9 is overlooked or ignored to a certain degree. Top 5 I-9 and E-Verify Questions and Answers from Retail?s BIG Show Which brings me to the main take-away from today?s blog: understanding retail concerns over I-9 and E-Verify compliance. According to the NRF, the retail industry is forecasted to grow at a rate faster than many other industries ? which means more jobs, more hiring, and yes, more I-9 and E-Verify questions. Here are some of the questions I received during the NRF show (and my responses). 1. I see from your E-Verify map, that more states are mandating the use of E-Verify. We don?t use the system in our stores right now, but perhaps we should given the likelihood of nationwide E-Verify? I?m going to resist taking out my crystal ball and answer this question more practically: to borrow a phrase from Bernie Wolfsdorf (immigration attorney extraordinaire), E-Verify appears to be a ?runaway train? barreling down the I-9 compliance track, as legislators across the country continue to espouse its merits as the best (and currently only) way to verify employment eligibility electronically. For that reason, I think retailers should start preparing for mandatory E-Verify (in whatever form it may take) by reviewing all of the E-Verify program materials, discussing implementation with counsel and considering what changes should be made to accommodate specific E-Verify requirements (e.g., notice of participation, handling E-Verify mismatches, investigating employee complaints, streamlining through software, etc.) 2. How should E-Verify be managed- does it make more sense for my individual stores or restaurants to handle submissions to E-Verify or should this be managed centrally? As with most areas of I-9 and E-Verify compliance, there is no ?one size fits all? approach to managing E-Verify submissions. For some retailers, the decentralized method of allowing each store to submit will make sense, especially where those stores have dedicated human resource personnel on staff or other team members who are experienced in handling I-9 and E-Verify issues. I find that the vast majority of retailers, however, will usually want to centralize control of their E-Verify submissions to a select group of individuals (the ?E-Verify Gurus?) who have taken all of the necessary training and are equipped to deal with the inevitable tricky situations which arise. Again, it?s always best to discuss this issue with counsel as circumstances may vary widely from company to company. 3. What is our potential financial exposure if we have failed to use E-Verify where required? I received this question several times during the show, particularly from attendees who were staring with trepidation at our colorful E-Verify map. As it turns out, this is another one of those ?difficult to answer? questions for which ?it depends? is the only right answer. Some states such as Alabama, Arizona, and South Carolina have taken a hard stance on violation of state immigration laws (including E-Verify mandates) whereas many others have not included any specific E-Verify penalties (making them ?without teeth? as critics would say). On the other hand, violators of the 2009 FAR Rule (which mandates E-Verify use for certain federal contractors and subcontractors) face substantial penalties for failing to use the system, including the loss of current and/or future contracts. 4. Hypothetically speaking, what happens if our store has not been completing I-9s at all? Hypothetically speaking, you have a very big problem on your hands. Failure to complete an I-9 form for a new hire employee is consistently viewed by the government as the most serious of I-9 ?paperwork? violations, because it represents a total failure of the verification requirements under the law. Even assuming your store has no unauthorized (or undocumented) workers, Immigration and Customs Enforcement (ICE) can still fine you $1,100 per missing I-9: which can lead to substantial civil penalties. For an example of how this can play out, look no further than the 2010 settlement with clothing giant, Abercrombie & Fitch, who agreed to pay over $1 million in fines for a faulty home-grown electronic I-9 system at one of their locations. As described in our blog here, A&F was shown little mercy despite the fact that they attempted (on some level) to do the right thing. As you can imagine, ICE has very little patience for employers who fail to complete an I-9 at all- especially since the form has now been around for over 25 years. 5. What?s in store (no pun intended) for electronic verification in the near future? Retailers are no strangers to emerging technologies, and so it?s not surprising that many attendees asked me whether the government would be utilizing Radio Frequency Identification (RFID) in some fashion to address frequently expressed concerns with E-Verify (e.g., not 100% accurate, does not detect identity fraud, etc.). RFID use has been growing in the retail industry, enabling companies to manage inventory, authenticate a certain brand or even dynamically display marketing messages based on a product ?tag?. Imagine picking up a Gillette razor at your local store and immediately seeing product information on a screen in front of you. Not so far away, believe me. How would this play out in the employment eligibility verification world? To some degree, it?s already begun. Since 2007, U.S. passports have been implanted with RFID technology, and under the REAL ID Act of 2005, state driver?s licenses may also eventually include such chips as well. In addition, several members in Congress have recommended the use of non-forgeable biometric cards (requiring the collection of fingerprints, iris scans, etc) to reduce fraud, prevent pre-screening, and empower individuals to correct errors more easily. So will we all be walking around with national IDs soon? Not necessarily. As one can imagine, an RFID-enabled card for ALL individuals would entail significant expense. Not to the mention the fact that a national ID of any kind will raise a host of privacy issues and concerns over how that information would be used. The Bottom Line As one of America?s largest industry sectors, retail accounts for a large percentage of our nation?s new job growth. Each one of those new jobs (to a large degree) requires an I-9 form and many will be checked against the government?s E-Verify system. Is your I-9 program currently in order? Are you using E-Verify where required? Would you be ready today if ICE showed up and asked for all of your past I-9s? If the answer is ?no? to any of the above, now is the time to revamp your program by talking with counsel and adopting a smart electronic solution. Remember: retail means jobs, but ICE means enforcement. To discuss this topic further or learn more about how an Electronic I-9 compliance & E-Verify system can help you meet federal and state law requirements, please call 877-725-4355 or click here. Our electronic I-9 experts and trusted attorney partners will be happy to address your unique I-9 and E-Verify challenges. See More

electronici9.com Slowly but surely, E-Verify is becoming the not-so-voluntary system of choice for verifying new hires? eligibility to work in the United States. Regardless of whether or not you believe the system is ?fast, free, and easy? or ?too flawed to be mandatory,? the reality is that many employers are required to use E-Verify through an ever-expanding web of state requirements. Gone are the days when E-Verify representatives would explain to employers that the system is purely voluntary (as originally proscribed in the 1996 law creating it). Today, the tagline goes something like this: ?E-Verify is a voluntary program unless you are a qualifying federal contractor or you have employees in the states of Alabama, Arizona, Georgia, Mississippi, South Carolina, Utah, etc., etc.? And if you?re a public contractor in any given state, the E-Verify maze really gets interesting as there are dozens of city and county requirements which seem to spring up from time to time (unbeknownst to many of the impacted employers). For the past few years, we?ve been describing E-Verify laws as a growing patchwork, but I think it now more properly should be described as a full-blown quilt. By my count (which may change at any minute), we have 9 states which require E-Verify for all or most employers; 8 states which require E-Verify for public employers, contractors, and/or both; and 5 states which require employers to use E-Verify in certain local or municipalities. If you?d like to see an interactive view of all of the E-Verify requirements, please visit the LawLogix E-Verify State Map here. You can also request a free download of our reference chart for offline viewing. New E-Verify State Laws ? Effective January 1, 2012 Alabama ? the Beason-Hammon Alabama Taxpayer and Citizen Protection Act Alabama?s new immigration law, Act No. 2011-535, is widely considered to be the toughest immigration law in the nation. While some parts of the law have drawn legal challenges, most of the provisions relating directly to employers have survived. Here is what you need to know for E-Verify: - Effective January 1, 2012, as a condition for the award of any state contract, every contractor or subcontractor shall enroll in E-Verify and verify the employment eligibility of its new hires using E-Verify. A first offense of the Act can lead to debarment from state contracts, cancellation of state government grants or incentives and suspension or revocation of business license for up to 60 days. A second offense may lead to permanent revocation of the employer?s business license. - Effective April 1, 2012, every business entity or employer in the state is required to enroll in E-Verify and verify the work eligibility of all new hires using E-Verify. A business entity or employer that uses E-Verify to verify the work authorization of an employee shall not be deemed to have violated this section with respect to the employment of that employee. For a complete analysis from guest attorney blogger and I-9 guru, Wendy Madden, see our previous blog post here. Georgia ? Illegal Immigration Reform and Enforcement Act of 2011 Georgia?s new immigration law, HB 87, is another broad piece of legislation that provides for state and local enforcement of immigration laws. With regards to E-Verify, HB 87 requires all private employers with ten or more employees to use E-Verify to confirm the employment eligibility of all new hires. As with a few other E-Verify mandates, Georgia?s HB 87 will be implemented in stages depending on the number of full-time employees (generally those who work 35 hours or more per week) within a particular business. Here are the timelines: - Effective January 1, 2012: all private employers with 500 or more employers are required to enroll in E-Verify and verify the employment eligibility of new hires. - Effective July 1, 2012: all private employers with 100 or more employees but fewer than 500 employees are required to enroll in E-Verify and verify the employment eligibility of new hires. - Effective July 1, 2013: all private employers with more than 10 employees but fewer than 100 employees are required to enroll in E-Verify and verify the employment eligibility of new hires. In addition, to enforce HB 87, every business will now have to submit an affidavit regarding compliance with E-Verify to its local government before that business can obtain or renew its business license or occupational tax certificate. Louisiana ? Act 376 and Act 402 Louisiana passed two E-Verify related bills in 2011 governing both public and private employers. Here are the basics: - Effective January 1, 2012, Act 376 requires that private employers who bid on a public entity project or enter into a contract agreement with a public entity for the physical performance of services, confirm in a sworn affidavit that the company uses the E-Verify system for all new employees within the United States. If the employer is awarded a contract, he or she is required to E-Verify all new employees in Louisiana hired through the duration of the contract. The requirement applies to both general contractors and their subcontractors. - Effective August 15, 2011, Act 402 stipulates that all Louisiana employers must confirm the citizenship or work authorization status of new hires through one of two ways. The employer may either: (1) use the E-Verify system; or (2) ensure that each employee has provided a picture ID and one of the following documents (a copy of which must also be retained): U.S. birth certificate or certified birth card; Naturalization certificate; Certificate of citizenship; Alien registration receipt card; U.S. immigration form I-94, with employment authorized stamp. Both laws include a provision stating that any employer who E-Verifies an employee who is later found to be unauthorized will not be penalized, nor will the employer be held civilly or criminally liable due to inaccurate E-Verify reports. South Carolina ? Act 69 Act 69 amends the South Carolina Illegal Immigration and Reform Act to require all employers to register and participate in E-Verify. Here are the details: - Effective January 1, 2012, all employers must enroll in E-Verify to verify the legal status of all new hires within three days. There will no longer be the option of only hiring employees who possess or qualify for a South Carolina driver?s license (or other state license with similarly strict requirements) in lieu of using E-Verify. All private employers in South Carolina shall be imputed a South Carolina employment license, which can be taken away under certain circumstances. For example, a private employer who knowingly or intentionally employs an unauthorized alien violates the private employer?s license. There will be a grace period of one year for employers, during which penalties will be probationary. After that, employers can face temporary suspension of their business license for hiring unauthorized workers and reinstatement fees after those workers have been fired. On third offense, an employer?s business license can be revoked. Tennessee ? The Tennessee Lawful Employment Act (H.B.1378) Last but not least, the Tennessee Lawful Employment Act requires all employers in Tennessee to demonstrate that they are hiring and maintaining a legal workforce either by verifying the employment eligibility of newly hired employees through E-Verify or by requesting (and maintaining a copy of) an identity/employment authorization document from all newly hired employees. The provisions will be phased in as follows: - Effective January 1, 2012, all state and local government agencies must enroll and participate in E-Verify or request and maintain an identity/employment authorization document from a newly hired employee Effective January 1, 2012, all private employers with 500 or more employees must enroll and participate in - - E-Verify or request and maintain an identity / employment authorization document from a newly hired employee - Effective July 1, 2012, all private employers with 200 to 499 employees must enroll and participate in - E-Verify or request and maintain an identity / employment authorization document from a newly hired employee - Effective July 1, 2013, all private employers with 6 to 199 employees must register and utilize E-Verify or request and maintain an identity / employment authorization document from a newly hired employee An employer who has been found to have violated the employment verification provisions of the Act will be assessed $500 for the first violation, $1,000 for a second violation and $2,500 for a third or subsequent violation. In addition to these civil penalties, first-time offenders will also be assessed an additional $500 for each employee or non-employee who was not verified through the E-Verify program or for whom an identity / employment authorization document was not requested. For second and third violations, employers will be fined an additional $1,000 or $2,500, respectively, for each employee or non-employee. Managing State-Level E-Verify Requirements To further complicate matters, many of these state laws have been enacted without any accompanying guidance, leaving many questions and legal issues unanswered. In light of these constantly changing and often-complex E-Verify requirements, employers need to make a coordinated effort to successfully manage their I-9 and E-Verify obligations by working closely with experienced immigration counsel to ensure compliance with both state AND federal rules. In addition, employers are well-advised to use an integrated I-9/E-Verify system which can automatically control the submission of I-9s to E-Verify by work location or impose other state-specific rules which may be in effect. As E-Verify continues to evolve and gain even more traction at the state level, employers should make sure to utilize these resources and tools to ease the inevitable E-Verify questions which arise from our growing state quilt. To discuss this topic further or learn more about how an Electronic I-9 compliance & E-Verify system can help you meet federal and state law requirements, please call 877-725-4355 or click here. Our electronic I-9 experts and trusted attorney partners will be happy to address your unique I-9 and E-Verify challenges.See More