The FTC has passed regulations requiring certain “Creditors” and “Financial Institutions,” to create Identity Theft Prevention Programs if they have certain covered accounts. These regulations require that such entities must have these programs in place by June 1, 2010. The regulations, known as “Red Flag” rules, are designed to help uncover, prevent, or mitigate identity theft in different types of financial transactions.
The “Support Our Law Enforcement and Safe Neighborhoods Act” (or Senate Bill 1070) was signed into law by Governor Jan Brewer on April 23rd. The most controversial feature of SB 1070 authorizes and compels law enforcement officers to verify the legal status of persons resonably believed to be illegally present in the country. The bill is scheduled to take effect on July 28, 2010.
Pursuant to SB 1070, employers must retain E-Verify verification records for the duration of a worker’s employment or three years (whichever is longer). E-Verify participation is required of Arizona employers under the Legal Arizona Workers Act. The new record retention requirement would presumably be satisfied by printing an E-Verify screenshot which shows the case verification. Alternatively, employers may annotate the Form I-9 with the case verification number or use electronic I-9 software which retains an electronic “paper trail” showing E-Verify completion. SB 1070 also provides employers with the affirmative defense to a state law charge of intentionally or knowingly employing an unauthorized worker if the employer can prove it was entrapped by law enforcement officials. In addition, SB 1070 makes stopping a motor vehicle to pick up and hire individuals for work a misdemeanor if the motor vehicle blocks or impedes traffic.
An amendment to SB 1070 designed to reduce the likelihood of racial profiling was passed on April 30th. House Bill 2162 limited the circumstances under which law enforcement officials should confirm an individual’s lawful immigration status. However, there were no significant changes to the employment-related provisions noted above.
The courts are already entertaining objections to SB 1070. Several lawsuits have been filed contesting the validity of SB 1070. Two lawsuits were filed on April 29th and another was filed by a group of interested organizations and persons including the ACLU on May 17th.
While awaiting the outcome of this litigation, Arizona employers are encouraged to keep the required E-Verify records (if not already doing so) by no later than the July 28th effective date.
Utah Governor Gary R. Herbert has signed into law a bill that will require Utah employers with 15 or more employees to use E-Verify. The Verification of Employment Eligibility law (SB251) will go into effect on July 1, 2010. However, before signing the bill into law Governor Herbert first secured a commitment from the bill’s sponsor to work to amend the bill to further clarify its intent, specifically that E-Verify participation will clearly be voluntary. An amendment is supposed to be implemented before the July 1 effective date.
On March 29, 2010, Oregon Governor Kulongoski signed legislation (SB1045) that specifically prohibits employers from using credit history in making hiring, discharge, promotion, and compensation decisions unless the applicant or employee is given advanced written notice and the credit history is substantially related to the position sought. The legislation provides additional exceptions for financial institutions and public safety offices. This law is effective immediately.
In order to meet a budget shortfall of 3.1 million dollars, the NH Judicial Branch announced that all New Hampshire courts and judicial branch administrative offices will be closed on the following days:
Friday April 2, 2010
Friday April 30, 2010
Friday May 28, 2010
State E-Verify and I-9 Laws
South Carolina: Audits Conducted, Citations Issued, But Initial Fines Waived
South Carolina’s 2008 law requiring employers to take additional steps to verify the work status of newly hired persons is in the process of being implemented. The law’s requirement that employers either in E-Verify (the electronic employment eligibility verification system operated by United States Citizenship and Immigration Services) or review an approved driver’s license participate or state-issued identification card of newly-hired employees is being phased in. Currently private employers with 100 or more employees are subject to the additional verification requirement. After some initial aggressive enforcement tactics last summer, the South Carolina Department of Labor, Licensing and Regulations (LLR) has settled into a more defined process for auditing compliance with the law.
More recently, reports indicate that LLR has been steadily auditing businesses and processing tips from the public about possible violators, with nearly 90 audits being performed in the month of January. Over 30 of the audited businesses were cited for violations. Fines for non-compliance have been issued including one for $42,500. However, the penalties are waived for a first-time violation and if corrective steps are immediately taken by affected employers. The audits will likely continue as the law is expanded to include all businesses on July 1, 2010. Employers are reminded to review current verification procedures to ensure compliance with not only federal law but also state law.
Oklahoma: Injunction Against E-Verify Requirement Reversed
Oklahoma’s Taxpayer and Citizen Protection Act of 2007 contains a provision requiring employers that contract with the state to use E-Verify, the Internet-based system operated by United States Citizenship and Immigration Services that allows employers to verify the employment eligibility of employees. This provision of the law was challenged as unconstitutional by several business organizations led by the U.S. Chamber of Commerce. The primary argument of the U.S. Chamber was that the law conflicts with the federal Immigration Reform and Control Act (IRCA) and therefore is preempted.
In June 2008, a federal district court found that the U.S. Chamber was likely to prevail on the merits and therefore issued a preliminary injunction against enforcement of the law’s E-Verify provision. On appeal, the Tenth Circuit Court of Appeals reversed the district court’s grant of a preliminary injunction against enforcement of the E-Verify provision. Thus, it appears that Oklahoma may soon be able to enforce the E-Verify provisions of the law.
The number of workers claiming job discrimination based on disability, religion or national origin surged to new highs last year, as federal job-bias complaints overall stayed at near-record levels.
On January 6, 2010, the Equal Employment Opportunity Commission (EEOC) said that charges of disability discrimination rose by about 10%, the largest increase of any category. The increase coincided with changes to the Americans with Disabilities Act last year that made it easier for people with epilepsy, diabetes and other treatable conditions to claim they are disabled.
Charges of discrimination based on national origin rose by about 5%, while religious discrimination claims rose less than 1%. Allegations of race discrimination remained the most frequently filed complaint accounting for about 36% of all filings last year.
The EEOC said that the near-historic level of complaints overall may be due to factors including economic conditions, increased diversity and demographic shifts in the workforce.
Citizenship and Immigration Services (USCIS) advises its customers that the Department of Homeland Security (DHS) Appropriations Act of 2010, signed by the President on Oct. 28, 2009, extends the following USCIS programs until Sept. 30, 2012, including E-Verify.
E-Verify, an Internet-based system operated by DHS in partnership with the SSA, allows participating employers to electronically verify the employment eligibility of their newly hired employees. More than 168,000 participating employers at nearly 640,000 worksites nationwide currently use the program. Since Oct. 1, 2009, more than 1.3 million employment verification queries have been run through the system and approximately 96.9 percent of all queries are now automatically confirmed without any need for employee action.
The Senate has opted to maintain the E-Verify program for three more years as part of a 44 billion dollar funding bill for the Department of Homeland Security that passed on a 79 - 19 vote.
The House has passed a similiar extension including a provision that would tighten the verification process by including thumbprints or other biometric traits to cut down on forgeries.
The Senate Sept. 30 approved, with a mostly party line 62-38 vote, a continuing resolution for Labor Department funding that contains a one-month extension for four immigration-related programs, including E-Verify, and one veterans’ job program.
The resolution extends funding for the Labor Department, as well as many other federal agencies, until Oct. 31 at fiscal year 2009 levels to allow lawmakers to complete work on the FY 2010 Labor-HHS appropriations bill (H.R. 3293). The department’s funding was set to expire Sept. 30.
The resolution, which accompanies the fiscal year 2010 legislative branch appropriations bill (H.R. 2918), would extend the programs’ current expiration date from Sept. 30 to Oct. 31. President Obama is expected to sign the bill.
The final passage by the Senate came after two procedural votes aimed at killing the package. Senate Republicans took issue with various military and Postal Service provisions in the bill.
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