Mississippi Requires Employers To Check Employees' Employment Authorization With E-Verify

The Mississippi Employment Protection Act (SB2988), signed on March 18, 2008, requires all employers in the State to use E-Verify to determine whether employees are authorized to work. The E-Verify system is an online employment verification system administered by the Department of Homeland Security and the Social Security Administration which provides prompt feedback regarding whether information presented by new employees matches government records. The statute separately requires State contractors and subcontractors to use E-Verify, though this seems redundant given the overall requirement that every employer use the federal system. The Act further provides that employers who terminate U.S. citizen or permanent resident employees while continuing to employ unauthorized immigrants shall be liable for unlawful discrimination. However, the use of E-Verify shall be a safe harbor for employers from liability under this provision. Third party employers must document to companies to whom they send workers that the employer is registered in E-Verify.

The new law would take effect as follows:

  1. all State and local government agencies, public contractors and subcontractors, and private employers with 250 or more employees, must be using E-Verify by July 1, 2008;
  2. employers with at least 100 but fewer than 250 employees must use E-Verify by July 1, 2009;
  3. employers with at least 30 but fewer than 100 employees must use the system by July 1, 2010;
  4. all other employers must use it by July 1, 2011.

Employers who violate the new law are subject to a cancellation of their State contracts and a bar on State contracting for three years as well as revocation of their business license for up to three years.

The Mississippi law contains a unique provision which is likely to trigger a court challenge. It makes it a felony for any person to accept or perform employment for compensation while knowing or in reckless disregard of the fact that the person is an unauthorized alien. It states, “Upon conviction, a violator shall be subject to imprisonment for not less than one year nor more than five years, a fine of at least $1,000 and as much as $10,000, or both.” The bill would allow the state to prosecute and imprison any unauthorized immigrant found to be working, something that appears to go way beyond a state's authority with respect to regulating immigration.

Jackson Lewis attorneys are available to assist employers with immigration issues, including those involving the E-Verify system.

Related Links
Mississippi Employment Protection Act[90 KB]