Following the Supreme Court’s ruling in Chamber of Commerce v. Whiting, 131 S.Ct. 1968 (2011), in which the Court upheld provisions in the Legal Arizona Workers Act that require electronic verification of employment eligibility through an E-Verify system, many states are adopting laws requiring employers to use E-Verify.

On May 13, 2011, Georgia enacted the Illegal Immigration Reform and Enforcement Act (“IIREA”), which is modeled after the Arizona law. The IIREA requires that all public and private employers enroll in E-Verify. The law will be implemented in phases depending on the size of the employer: employers with 500 or more employees must enroll by January 1, 2012; employers with 100 to 499 employers are required to enroll by July 1, 2012; employers with 10 to 99 employees are required to enroll by July 1, 2013. Employers with fewer than 10 employees are exempted from the mandatory use of E-Verify.

On June 27, 2011, South Carolina enacted S.B. 20, which amends several sections of the South Carolina Illegal Immigration Reform Act of 2008 (“SCIIRA”). One amendment mandates that all South Carolina employers that are required to complete and maintain federal employment eligibility verification forms or documents use E-Verify to do so. Currently under the pre-amended law, SCIIRA gives employers the options of either enrolling in and using E-Verify, or employing only workers who (a) have a South Carolina driver’s license or ID card, (b) have a driver’s license or ID card issued by another state whose license requirements are as strict as those in South Carolina, or (c) are eligible to obtain a South Carolina driver’s license or ID card. The new law takes away these alternative means for compliance with federal immigration laws. South Carolina employers have until January 1, 2012, to comply with the new law.

On June 23, 2011, North Carolina enacted H.B. 36, requiring certain employers to verify the employment eligibility of all new hires through E-Verify. The North Carolina law’s 24-month phasein period will begin on October 1, 2011. All counties and municipalities are required to start using E-Verify effective October 1, 2011, while all other employers with over 24 employees in North Carolina must start using E-Verify according to the following schedule, depending on the size of the employer’s workforce: employers with 500 or more employees are required to start October 1, 2012; employers with 100 to 499 employees are required to start January 1, 2013; and employers with 25 to 99 employees are required to start July 1, 2013. The law exempts seasonal temporary employees who are employed for 90 or fewer days during a 12-month period. Under the new law, any person with a good faith belief that an employer has violated the law may bring a complaint to the Commissioner of Labor who must investigate the complaint and hold a hearing if he or she determines a violation has occurred. Upon issuance of an order for a violation, civil penalties may be assessed as follows: for a first violation, an employer must file an affidavit within three business days after the order that the employer has, after consultation with the employee, requested a verification of work authorization through E-Verify; for a second violation, the employer must file the affidavit and pay a civil penalty of $1,000, regardless of the number of missing employee verifications; and for a third or subsequent violation, the employer must file the affidavit and pay a civil penalty of $2,000 for each missing employee verification. Failure to file the required affidavit for any violation also results in a civil penalty of $10,000.

Alabama recently enacted a new law requiring that all employers enroll in E-Verify. While the law does not provide any sanctions for failing to enroll in E-Verify, employers that do enroll will have a safe harbor from any liability under Alabama law for knowingly employing an unauthorized worker. Currently, implementation of this new law is temporarily enjoined by a federal court. The temporary injunction remains in effect until September 29, 2011. If the law is allowed to move forward, it will take effect on April 1, 2012.

On June 7, 2011, Tennessee enacted S.B. 1669 and H.B. 1378, also known as the Tennessee Lawful Employment Act. The law requires all employers to either register with and use E-Verify, or to request from the employee and retain a photocopy of one document from a list of acceptable documents in addition to fulfilling the federal Form I-9 requirements. This law will be phased in depending on the size of the employer as follows: employers with 500 or more employees and government entities are required to comply with the law as of January 1, 2012; employers with 200 to 499 employees are required to comply as of July 1, 2012, and employers with 6 to 199 employees are required to comply as of January 1, 2013.

Currently, 17 states have laws that require (or will require) the use of E-Verify by public and/or private employers: Alabama (all employers and all state/public contractors); Arizona (all public and private employers); Colorado (state contractors); Florida (state agencies, contractors, and subcontractors); Georgia (all public and private employers and state contractors); Idaho (state agencies, contractors); Indiana (state agencies and state contractors); Minnesota (state contractors); Mississippi (all public and private employers); Missouri (public employers and some contractors); Nebraska (public employers, contractors); North Carolina (all public and private employers); Oklahoma (public employers, contractors, and subcontractors); South Carolina (all employers); Tennessee (all employers); Utah (public and private employers, contractors, and subcontractors); and Virginia (state contractors and agencies).