Richard J. Morgan, Editor
McNair Law Firm, P.A.

Vol. 16, No. 10
July 2008

LEGISLATION

Aliens, immigration, and employment ― South Carolina-style

During the recently completed legislative session, South Carolina stepped into the controversial immigration debate when the legislature passed and Governor Mark Sanford signed a bill mandating employment eligibility verification along with other requirements. Parts of the new law become effective January 1, 2009, and other parts will be phased in through July 2010.

Doing business with state, local governments

Beginning January 1, 2009, every public employer is required to register and participate in the federal work authorization program to verify the employment authorization of all new employees. Also on that date, the verification procedures kick in for contractors and subcontractors doing business with the state or local governments.

The new law identifies the contracts triggering the verification procedures as "service contracts" ― i.e., contracts involving the physical performance of labor if the total cost of labor exceeds (1) 30 percent of the cost of all labor or (2) five percent of the total contract price. Companies doing less than $25,000 worth of business with the state in a 12-month period or less than $15,000 worth of business with local governments are excluded from the requirement.

All employers meeting those criteria will have to use the federal electronic database (often referred to as E-Verify) to confirm a new worker's name and social security number or require a South Carolina driver's license from the newly hired worker. The new law does permit the worker to present an identification card issued by the South Carolina Department of Motor Vehicles (DMV) in lieu of a South Carolina driver's license. In addition, there's a provision requiring the executive director of the DMV (or his designee) to publish a list of states that have "license requirements . . . at least as strict as those in South Carolina" and permit those approved state driver's licenses to also be accepted for verification purposes.

There's a sliding scale on the size of the employer for compliance purposes. Contractors with 500 or more employees must begin complying with the law January 1, 2009; employers in the 100-499 employee range must comply after July 1, 2009; and all employers must comply regardless of size after January 1, 2010.

Contractors and public employers that make a good-faith effort to comply with the new law will not be subject to sanctions. However, companies that violate the law by making or filing false, fictitious, or fraudulent documents, statements, or reports can be convicted of a felony, with fines at the court's discretion or up to five years' imprisonment, or both.

Private employers

For most private-sector employers, July 1, 2009, is the start-up date of the verification program. Companies in the private sector may not employ a person on or after July 1, 2009, unless there is a South Carolina business license in effect and not suspended or revoked. The statute "imputes" this "license" to employ as of July 1.

For employers with 100 or more employees on that date that are required by federal law to complete and maintain federal employment eligibility verification forms or documents (I-9s), the statute imposes the additional requirement of participating in E-Verify or employing only workers who (a) at the time of employment possess a valid South Carolina driver's license or verification card, (b) are eligible to obtain such a license or verification card, or (c) possess a valid driver's license or verification card from another state that has been determined to have as strict a licensing requirement as South Carolina. As of July 1, 2010, those standards apply to all private employers. An employer that participates in the E-Verify program can provisionally employ a person for five days, but if his information cannot be verified, the employer can no longer allow him to continue to work.

Employers found to have violated the statute jeopardize the "imputed employment license" through an escalating revocation process. A first offense leads to a 10- to 30-day revocation of the license; a second offense merits a 30- to 60-day revocation; and a third offense results in a five-year suspension.

New claim for wrongful termination

The statute creates a new claim permitting an employee to sue his former employer for terminating him to replace him with a person it knows or reasonably should know is an unauthorized alien. The former employee must show all of the following:

1. the replacement occurred within 60 days of the employee's termination;
2. the replacement worker was an unauthorized alien at the time of the replacement;
3. the employer knew or reasonably should have known of the replacement worker's status; and
4. the replacement worker took over duties and responsibilities the former employee performed.

Copyright 2008 M. Lee Smith Publishers LLC

SOUTH CAROLINA EMPLOYMENT LAW LETTER is not intended to provide legal advice, which can be given only after consideration of the facts of a specific situation.