As of January 1, 2023, Tennessee will require all private employers with at least 35 employees to use E-Verify and maintain E-Verify case results.
E-Verify is a federal electronic database intended to aid employers in confirming that the documentation provided by new hires to establish lawful employment eligibility is in fact valid. Except for federal contractors, federal law does not mandate the use of E-Verify, but states have passed various mandates.
Tennessee began phasing in E-Verify in 2012 by passing legislation requiring that most Tennessee employers either use E-Verify or review and maintain certain identification documents. In 2017, the Tennessee Lawful Employment Act (TLEA) took effect, requiring all Tennessee employers to demonstrate they are hiring and maintaining a legal workforce. The TLEA requires private employers with at least 50 employees to use E-Verify.
Additionally, beginning January 1, 2023, the Tennessee law will have the following new provisions:
If an employer with fewer than 35 employees or an employer that does not have internet access wishes to use E-Verify, the office of employment verification assistance can enroll the employer in E-Verify or conduct the work authorization status checks.
Those who use E-Verify can be protected from state claims of wrongful or retaliatory discharge if the employee is not authorized to work in the United States, but the employer was not aware of that.
An employee does not have a state cause of action for discrimination based on national origin if an employer discovers an employee is not authorized to work in the United States through E-Verify and discharges the employee based on that.
For employers with fewer than 35 employees, E-Verify is not required. However, all employers should periodically audit their employment verification records to ensure they have been completed fully and properly. The Department of Labor and Workforce Development has been active in auditing E-Verify compliance for employers with at least 50 employees. Critically, the Tennessee definition of “employee” includes and counts employees under the same FEIN – this means that employers that may have fewer than 35 employees in the state of Tennessee but have more than 35 employees under the same FEIN are subject to E-Verify for Tennessee employees come January 1, 2023.