The South Carolina Illegal Immigration and Reform Act becomes effective July 1, 2009, for private employers with 100 or more employees. For private employers with less than 100 employees, the compliance date is July 1, 2010.
The Act requires all South Carolina employers to verify the legal status of new employees and prohibits employment of any worker who is not legally in the United States and authorized to work. After July 1, 2009, all businesses in South Carolina that employ 100 or more employees are imputed a South Carolina employment license which permits an employer to hire employees. The imputed license remains in effect as long as the employer abides by the law.
In addition to completing and maintaining a Form I-9, all South Carolina employers must within five days after employing a new employee:
1. Verify the employee’s work authorization through the E-Verify federal work authorization program administered by the U.S. Department of Homeland Security; or
2. Verify that the employee:
a. possesses a valid South Carolina driver’s license or identification card issued by the South Carolina Department of Motor Vehicles;
b. is eligible to obtain a South Carolina driver’s license or identification card; or
c. possesses a valid driver’s license or identification card from another state whose qualification requirements are as strict as those of the state of South Carolina.
The South Carolina Department of Motor Vehicles has determined that driver’s licenses or identification cards issued by the following states are acceptable: AK, AZ, CT, FL, GA, ID, IN, ME (credentials issued after 11/15/08), MA, MI, NH, NJ, PA, RI, TX and VA. For employers in the Metrolina area, a North Carolina driver’s license currently will not be an acceptable form of identification. This list is updated periodically. The most current version of the list is on the DMV website at www.scdmvonline.com. For more information on the E-verify federal work authorization program and to access E-verify, visit the U.S. Citizenship and Immigration Services web site at: www.uscis.gov.
The South Carolina Department of Labor, Licensing and Regulation is responsible for investigating complaints and conducting random audits of private employers to assure compliance. The agency must: (1) notify the United States Immigration and Customs Enforcement of suspected unauthorized aliens employed by a private employer; (2) notify state and local law enforcement agencies responsible for enforcing state immigration laws, and (3) assess penalties for violations of the Act.
For violations of procedures for hiring and verifying worker eligibility, a private employer can be assessed a civil penalty of not less than $100 and not more than $1,000 for each violation. Upon the first violation, the employer can avoid assessment of a penalty if within 72 hours of notification of a violation the employer complies with the verification provisions. An employer who knowingly or intentionally employs an unauthorized alien faces suspension or revocation of the employer’s imputed licenses. During the time that the license is suspended or revoked, the employer cannot employ any employees, effectively putting it out of business in South Carolina.
The Act also provides a civil cause of action for any person who is terminated by an employer if the purpose for discharge was to replace the worker with another person whom the employer knew or should have known was not lawfully admitted to the United States or not authorized to work in the United States.
Federal courts recently upheld the validity of a similar Arizona law, and there is little chance that the new South Carolina Act will face judicial intervention.