Beware of State E-Verify Requirements for Remote Employees
by Russell Kalvelage and Christine Samsel
at Brownstein Hyatt Farber Schreck
As remote and hybrid work arrangements become increasingly common, many employers have expanded their recruiting efforts, hiring workers throughout the country. These multijurisdictional workforces give rise to new or previously overlooked regulatory pitfalls, including I-9 compliance and the use of E-Verify.
E-Verify Requirements:E-Verify is a web-based tool operated by U.S. Citizenship and Immigration Services, in partnership with the Social Security Administration, that allows employers to verify the work authorization of their employees. Subject to limited exceptions, unless an entity is a government contractor, the use of E-Verify is optional from a federal standpoint and in several states. However, many jurisdictions have their own wider-ranging requirements. Some state laws parallel federal contractor requirements, limiting mandatory E-Verify to, for instance, state and local agency contractors. Others are much broader. By way of example, Florida recently enacted a law, effective July 1, 2023, pursuant to which all private employers with 25 or more employees must use E-Verify for their Florida employees. Florida joins states such as Arizona, North Carolina, South Carolina, Tennessee and Utah (among others) that require private employers—either all employers or those of a certain size—to use E-Verify. Failure to comply can result in fines, civil penalties and other sanctions.
Implications for Employers:State-specific E-Verify requirements should not pose any issues for employers already enrolled in the system. However, employers not currently enrolled in E-Verify should consider the implications of hiring remote employees in jurisdictions where the use of E-Verify is mandated. Keep in mind that once enrolled in E-Verify, employers must E-Verify all newly hired employees; they cannot use the system selectively. This means that the hiring of a single employee in a jurisdiction with mandatory E-Verify can impact the employer’s employment eligibility process in its entirety.
Next Steps for Employers Not Enrolled in E-Verify:Now is a good time to assess these issues. Employers who do not already utilize E-Verify should review the locations of their remote employees and any jurisdiction-specific E-Verify requirements to determine applicability (e.g., based on employer size, etc.).
- If there are employees in mandatory E-Verify jurisdictions that have not been E-Verified, consult with legal counsel to resolve the issue.
- If the employer does not have remote employees in such jurisdictions, establish a plan going forward: Is the employer willing to enroll in E-Verify in the future? Or should policies be implemented so as not to trigger those E-Verify requirements (e.g., not hiring remote workers in those jurisdictions)?
- Keep apprised of changes in applicable law—such as the new Florida E-Verify requirements—that can impact your workforce and verification procedures. The law changes rapidly, and it’s important to stay current.
One factor in considering whether to enroll in E-Verify is the new streamlined remote verification process. As detailed in our recent client alert, only employers enrolled in E-Verify are eligible to utilize the newly created remote verification procedures for I-9 documentation. That may be a significant enough benefit to justify enrolling in E-Verify, given the reduction in administrative burden and cost of the streamlined remote verification process.
The complex and ever-changing web of federal, state and local laws make it difficult for multijurisdictional employers to remain compliant. Employment counsel well versed in these issues can help.
