This bill requires certain employers to utilize an e-verification program in hiring; removes immunity for an employer's reliance on other forms of verification; and makes other related changes, as follows:
(1) Employment of illegal aliens. Present law prohibits a person from knowingly employing, recruiting or referring for a fee for employment an illegal alien. This bill:
(A) Makes the present law provisions that govern the employment of illegal aliens applicable to governmental entities, in addition to the persons to whom they apply under present law, which is individuals, corporations, partnerships, associations, and other legal entities;
(B) Creates a rebuttable presumption that a person has not violated the prohibition with respect to a particular employee if a person verified that the employee was eligible to work through the E-Verify program prior to the employee performing work. This presumption will replace present law provisions whereby a person who takes certain action or is presented with documentation with regard to the hiring of a particular person is deemed not to have violated the prohibition. "E-Verify program" or "E-Verify" means the federal electronic employment verification service provided by the United States department of homeland security or any successor program designated by the federal government for verification by employers of the work eligibility of new employees; and
(C) Deletes the present law provisions governing the filing of a complaint with the department of labor and workforce development if any state or local governmental agency, officer, employee or entity has reason to believe that a violation of the prohibition of employing an illegal alien has occurred; however, there are similar provisions under the Tennessee Lawful Employment Act;
(2) Tennessee Lawful Employment Act. This bill:
(A) Expands employers subject to the requirements of the Act to include public contractors and public subcontractors with at least six employees. Under present law, employers subject to the Act are governmental entities and private employers (meaning any person who is required by federal law to report remuneration paid to at least six employees). This bill specifies that "employer" does not include farmers. Present law defines "governmental entity" as this state or any political subdivision which exercises governmental powers under the laws of this state and uses tax revenues. This bill redefines "governmental entity" to mean this state, any agency, office, body, institution, component, or other instrumentality of this state, or any political subdivision of this state, including, but not limited to, any county, municipality, city, town, consolidated city-county, school district, public school system, utility district, regional governance district, special district, watershed district, soil conservation district, port authority, airport authority, housing authority, development authority, or development agency;
(B) Requires employers to use the E-Verify program to verify the work eligibility of an employee prior to the employee providing labor or services and maintain documentation of any results generated by the E-Verify program. Under present law, only private employers with 50 or more employees are required to enroll in the E-Verify program;
(C) Clarifies that an employer will not be deemed to be in violation if the employer has requested, but not yet received, assistance from the office of employment verification in regard to the E-Verify program;
(D) Clarifies that the department will investigate compliance with the Act and revises the provisions governing investigations. This bill specifies that the department, as part of an investigation, will request that the federal government verify the work eligibility status of any employee or non-employee named in a complaint or believed to have violated the Act, and the department must rely upon such verification. The department will not independently make a final determination as to whether an employee or non-employee is an illegal alien. This bill requires the department, upon finding a violation, to notify the United States immigration and customs enforcement agency of the identity of the person in violation and each illegal alien involved, including, but not limited to, the physical address at which an illegal alien resides, if known; notify the local law enforcement agency of the jurisdiction in which the violation occurred and in which the illegal alien resides; notify the appropriate official making declarations pursuant to the present law provisions governing public contracts of a violation; order the person in violation to terminate the employment of all illegal aliens and take any other remedial action deemed necessary by the department to ensure compliance with the Act; order the appropriate agency, regulatory board, local government, or governmental entity to revoke, suspend, or deny all applicable licenses held by the person in violation that are necessary for the person to operate business at the specific location at which an illegal alien performed work. If a license is not necessary to operate the person's business at the location, but is necessary to generally operate the business, then all licenses held by the person at the person's primary place of business must be revoked, suspended, or denied. The department will also take the following actions: for a first violation, order license revocation, suspension, or denial until the person shows, to the satisfaction of the department, that the person is no longer in violation; or for a second or subsequent violation occurring within a three-year period, order license revocation, suspension, or denial for one year;
(E) Revises the present law provisions governing the assessment of penalties for a violation. Under present law, the commissioner assesses the following civil penalties: $500 for a first violation; 1,000 for a second violation; or $2,500 for a third or subsequent violation. In addition to these civil penalties, the commissioner also assesses the following civil penalties: for a first violation, $500 for each employee or non-employee not verified; for a second violation, $1,000 for each employee or non-employee not verified; or for a third or subsequent violation, $2,500 for each employee or non-employee not verified. Also, the commissioner assesses a monetary penalty of $500 for any employer that knowingly violates the Act and additional penalties of $500 per day for each day that such violation continues to exist, beginning 45 days after the notice and initial order is received by the employer. This bill revises the penalty provisions to instead provide that the commissioner will assess the following civil fines against the person in violation:
(i) $500 for a first violation plus $500 for each additional illegal alien employed and each employee or non-employee misclassified or not verified;
(ii) $1,000 for a second violation plus $1,000 for each additional illegal alien employed and each employee or non-employee misclassified or not verified; and
(iii) $2,500 for a third or subsequent violation plus $2,500 for each additional illegal alien employed and each employee or non-employee misclassified or not verified; and
(F) Authorizes a person in violation to submit to the department evidence of remedial action and compliance. Upon receipt of the evidence, the department will issue a warning in lieu of all penalties for a first violation that the department determines was not committed knowingly. If a violator fails to submit evidence of remedial action, the department must assess a penalty of $500 per day for each day that a violation continues to exist after expiration of the remedial period. Additionally, the department may apply to a circuit or chancery court for a judicial order directing a person to comply with the final administrative order;
(3) Other provisions. This bill:
(A) Provides that a person registered with and using the E-Verify program must not be held civilly liable in a cause of action for: unlawful hiring of an illegal alien if the information obtained from the E-Verify program indicated that the work eligibility status was not that of an illegal alien; or refusal to hire if the information obtained from the E-Verify program indicated that the person's work eligibility status was that of an illegal alien. An employer who in good faith registers with and uses the E-Verify program will be considered to have complied with present law hiring practices requirements and may not be held liable for any damages. The employee will be immune from a legal cause of action brought for the use of and reliance upon incorrect information obtained as a result of an isolated, sporadic, or accidental technical or procedural failure, when determining final action on work eligibility status; and
(B) This bill prohibits governmental entities, public contractors, and public subcontractors from entering into a contract with one another unless each party to the contract registers with and uses the E-Verify program to verify the work eligibility status of all new employees. A governmental entity, public contractor, or public subcontractor that has actual evidence that a person with which it is contracting has knowingly violated this section must require the person to remedy the violation within 60 days. If a contractor or subcontractor does not remedy the violation within 60 days, the governmental entity may terminate the contract. This bill authorizes a governmental entity, public contractor, or public subcontractor to file an action with a circuit or chancery court to challenge a termination under this bill. Upon the initial termination of a contract, the person or entity terminating the contract may withhold up to 10 percent of the total amount due and owing at the time of termination based upon a first violation of this section. Upon a second or subsequent violation, the person or entity terminating the contract may withhold up to 20 percent of the total amount due and owing at the time of termination.

Statutes affected:
Introduced: 50-1-103(a), 50-1-103, 50-1-702, 50-1-703, 50-1-709
Current Version: 50-1-103(a), 50-1-103, 50-1-702, 50-1-703, 50-1-709