Next up in our review of states requiring private employers to participate in E-Verify – North Carolina and South Carolina. 

North Carolina

In June 2011, North Carolina enacted a law (North Carolina HB 36) requiring all state agencies, counties and municipalities to use E-Verify by October 1, 2011.  All other North Carolina employers must implement E-Verify by the following deadlines:

• Employers with more than 500 employees: October 1, 2012
• Employers with 100-499 employees: January 1, 2013
• Employers with 25-99 employees: July 1, 2013

The North Carolina law exempts seasonal temporary employees who are employed for 90 or fewer days during a 12-month period.  However, employers need to be careful with these state mandated exemptions.  In order to participate in E-Verify, employers have to sign aMemorandum of Understanding with the Department of Homeland Security which requires the employer to use E-Verify for all new employees and prohibits the employer from verifying selectively. 

The North Carolina law imposes civil monetary penalties for violations.

South Carolina

In June 2011, South Carolina enacted a law (South Carolina Act 69) requiring all employers to participate in E-Verify by January 1, 2012.  The new law removed 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.  The South Carolina law includes a grace period of one year for employers, during which penalties are probationary.  After the one year grace period, employers can face suspension of their business license.

The South Carolina law also requires private employers to maintain contact information for all of its subcontractors and sub-subcontractors performing services for the private employer and to provide such information pursuant to an audit or investigation within seventy-two hours of the request.

Like many other states, certain provisions of the South Carolina immigration law have been blocked from taking effect by a challenge in federal court (see United States v. South Carolina, No. 2:11-cv-2958 (D.S.C. December 22, 2011)), including a provision that requires law enforcement officers to check the immigration status of people they pull over for traffic violations.  However, the provisions regarding participation in E-Verify remain in effect.

As predicted in my May 2011 blog on the U.S. Supreme Court’s decision upholding Arizona’s E-Verify mandate, several states have followed suit and mandated E-Verify participation.  At the start of this year, E-Verify requirements became effective in Georgia, Louisiana, South Carolina and Tennessee, and all employers in Alabama must implement E-Verify by April 1, 2012.

The number of immigration-related bills introduced across the country in 2011 is astounding.  In 2011 alone, state lawmakers in all fifty states and Puerto Rico introduced over 1,600 immigration-related bills.  Of those bills, as of December 7, 2011, 42 states and Puerto Rico had enacted over 300 new immigration-related laws or resolutions.   

Of most importance to employers and businesses are the states that enacted laws in 2011 regarding E-Verify participation.  According to the National Conference of State Legislatures, 17 states now require E-Verify for public or private employers.   

While this list will not remain current for long, employers operating in at least the following states should pay attention to state E-Verify requirements:

• Alabama (passed in 2011) (effective April 2012)
• Arizona
• Colorado
• Florida (2011)
• Georgia (2011)
• Idaho
• Indiana (2011)
• Louisiana (2011)
• Mississippi
• Missouri
• Nebraska
• North Carolina (2011)
• Oklahoma
• South Carolina (2011)
• Tennessee (2011)
• Utah (2011)
• Virginia (2011)

While many states this year enacted laws requiring E-Verify use, a few states moved in the opposite direction.  In January 2011, Rhode Island repealed a 2008 executive order requiring use of E-Verify.  And, Minnesota’s 2008 executive order requiring some state agencies and contractors to use E-Verify expired in April 2011. 

E-Verify: Georgia

This blog is the first in a series to focus on individual states’ E-Verify requirements.  First up – Georgia. 

Effective January 1, 2012, E-Verify is mandatory for all employers with 500 or more employees in Georgia. (Georgia H.B. 87).  The Georgia law will eventually require all employers with more than 10 employees to use E-Verify.  The law kicks in for employers with 100-499 employees on July 1, 2012, and for those with 11-99 employees on July 1, 2013. 

Similar to those in the Arizona law (Arizona S.B. 1070), the penalties in Georgia include restrictions on the ability to get new or renew business licenses or other required business documents. 

The final 2011 installment of A Question of Ethics looks back at the year's big stories in government ethics.

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After the Supreme Court's 2010 decision in Citizens United, much of the debate focused upon how the ruling would open the door for more corporate and union political activity.  While no significant for profit corporate activity arose during the 2010 election cycle, there was an increase in political activity by corporate non-profits (and of course unions).  However, as Politico recently reported, the broader impact of Citizens United may prove to be on the permanency of the campaign process, not just on heightened participation during election season.  The phrase "permanent campaign" has been in our political lexicon for some time, but the concept has unquestionably now taken root, with political activity seamlessly continuing from one election cycle to the next:

Just one month after the 2010 midterms, the conservative Crossroads GPS launched $400,000 in radio ads pushing Democrats to extend the Bush tax cuts. The group spent another $450,000 last month in key House districts, plus $750,000 more in recent ads about the Wisconsin labor fight.

The Susan B. Anthony List, American Future Fund and Americans for Prosperity also are putting up ads, sending mailers and financing election-style bus tours — all feeding into a non-stop, two-year campaign against the Democrats heading into 2012.

It is important to remember that Citizens United was a campaign finance decision – not a tax law decision.  As Politico went on to discuss, the aforementioned groups are “essentially charities’ requiring them “to prove to the IRS that they deserve that special, non-political status, and the perks that go along with it.”  Although the FEC is in the process of finalizing its post-Citizens United rule making, the IRS has been fairly circumspect. The landscape, therefore, remains ambiguous.  With this permanent campaign will come the need for permanent -- and more rigorous -- compliance.  Non-profit corporations engaging in political activity by in particular must therefore understand the legal and regulatory restrictions that continue to evolve in the post-Citizens United world. 

With the Supreme Court’s decision last week in Citizens United v. Federal Election Commission, businesses suddenly find themselves free to engage in substantially more political advocacy and spending. However, before businesses rush out to take full advantage of their new freedom, they should be mindful that the landmark decision also brought with it new uncertainties and risks.

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Corporations were given a significant incentive to revisit their compliance programs this week, as the U.S. Sentencing Commission (the Commission) made public a proposed policy change that would offer substantial benefits to corporate defendants who could demonstrate that they have an adequately designed and deployed program for combating white collar crime. The Commission is in the midst of its current session, during which it has chosen to address how corporations are handled in criminal cases. This week’s announcement was a notable sign that the Commission intends to take concrete steps to create incentives for enhancement of corporate compliance programs -- an area on which the Commission and U.S. Department of Justice (DOJ) have placed increasing emphasis over the years.

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