Employers need to understand and implement state's new hiring statute

By R. EDDIE WAYLAND

Tennessee Voices
February 16, 2008

Starting Jan. 1, 2008, employers in Tennessee face a severe penalty for "knowingly" hiring or employing illegal aliens. This new statute, Tenn. Code Ann. ยง 50-1-103, prohibits employers from hiring, recruiting, or employing illegal aliens. According to the statute, "illegal alien" is defined as a person who at the time of employment was not lawfully admitted to the United States as a permanent resident under federal immigration laws, or a person without authorization to work in the United States.

Several federal laws are already in existence, which prohibit the hiring or employment of illegal aliens. The new Tennessee statute differs from the federal laws in one key area: the imposition of penalties. The federal laws dealing with the same offense generally impose fines. The amount of the fines increase with the number of employees involved as well as the number of prior offenses committed by the employer.

The Tennessee statute does not provide for the imposition of fines; rather, an employer will have its business license revoked, suspended, or denied until it can prove that it no longer employs illegal aliens. An employer who violates the law two or more times within a three-year period will have its business license suspended for at least one year. Under the new statute, an employer could be effectively put out of business in Tennessee for knowingly hiring or employing an illegal alien.

The Tennessee statute charges the commissioner of the Department of Labor and Workforce Development with enforcement. Also, the statute does not require a federal agency to investigate or make a finding that the employer knowingly hired illegal aliens. Instead, any Tennessee state or local government agency, officer, employee or entity may initiate an investigation by filing a complaint with the Department of Labor and Workforce Development. The Department will conduct an investigation and hearing, if necessary. If a violation is found, the Department will then move to have the offending employer's business license revoked.

To be found liable, the employer must have "knowingly" hired or employed an illegal alien. Under the statute "knowingly" means having actual knowledge that a person is an illegal alien or having a duty imposed by law to determine the immigration status of an illegal alien and failing to perform that duty. Under federal law an employer is liable for knowingly hiring an illegal alien, if it knew or should have known an employee was an illegal alien. The Tennessee statute expressly provides ways in which an employer can avoid liability for knowingly hiring an illegal alien, even if it later turned out that the employee was in fact an illegal alien.

An employer may protect itself from penalties in two ways: (1) it must have requested and received properly completed and appropriate I-9 Form and employment verification documents from the employee in question within 14 days from the commencement of employment, even if the verification documents are later determined to be false; or (2) it verified the employee's work authorization status by using the federal Basic Pilot Program, now known as E-Verify.

The intended purpose of the Tennessee statute is to supplement the federal laws and raise the stakes for employers in Tennessee, by imposing potentially more severe penalties against companies who are found in violation. Tennessee employers should take steps to insure that they do not violate this statute. An audit of existing practices, along with a review of I-9 Forms and related documents, will help to reveal vulnerable areas. Proper procedures and a work authorization protocol should be implemented and followed.

In addition, supervisors, managers and other company representatives should be trained to insure that they know the legal standards and requirements that must be followed. With proper planning, education and consistent procedures Tennessee employers should successfully avoid running afoul of the new Tennessee law and comparable federal legislation.

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