On June 27, 2011, United States District Court Judge Thomas Thrash, Jr. signed an Order enjoining enforcement of portions of HB87 that were set to go into effect on July 1, 2011. Judge Thrash’s ruling, however, does not affect portions of the new immigration law requiring certain employers to register with and use E-Verify. The provisions of HB87 that relate to E-Verify are summarized below.
Sections 2 and 3 of HB87, which still go into effect on July 1, 2011, revise and clarify current Georgia law requiring contractors performing physical services for public employers and their subcontractors and sub-subcontractors to use E-Verify. Performing physical services means to build, alter, repair, improve, or demolish a public building or structure or to perform any labor for a public employer. The new law makes clear that the requirement to use E-Verify flows down to all subcontractors and sub-subcontractors on those public projects. Such contractors, subcontractors, and sub-subcontractors must complete affidavits attesting to E-Verify participation, and the affidavits must contain the language specified by the statute. The new law also clarifies the requirement for subcontractors and sub-subcontractors to provide completed affidavits at the time of entering into the contract.
Section 3 adds a new provision to Georgia law, which requires a person or entity with no employees to provide a copy of his or her state issued ID or driver’s license when entering into a contract with a public employer for the performance of physical services or a contract with a contractor, subcontractor or sub-subcontractor on such public project. The ID or driver’s license provided pursuant to this provision must have been issued by a state within the United States that verifies a person’s lawful immigration status prior to issuing such documents. The Attorney General will provide a list of states that verify lawful immigration status prior to issuing state ID’s or drivers’ licenses. The new law, however, does not explain what to do if the person only has an ID or driver’s license issued by a state that does not check immigration status.
Section 3 also contains a flow up requirement of notice when new contracts are entered into so that the general contractor has the responsibility of notifying the public employer of all contracts for the project. This is somewhat different than the current law under which notices flow directly to public employers from both contractors and subcontractors.
From January 1, 2012 through July 1, 2013, Section 12 of HB87 phases in the requirement for private employers with more than ten employees to register with and being using E-Verify. Before issuing or renewing any business license or other document required for doing business in Georgia, counties and municipalities will require employers to submit affidavits that they are registered with and using E-Verify or are exempt from the requirements. The effective dates of this portion of the new law are based on the number of employees as follows:
January 1, 2012 Effective for employers with 500 or more employees
July 1, 2012 Effective for employers with 100 or more, but fewer than 500, employees
July 1, 2013 Effective for employers with more than 10, but fewer than 100, employees
Employers using E-Verify pursuant to Georgia law are only allowed to use E-Verify for verifying the employment eligibility of new employees hired on or after the date the employer registers with E-Verify and signs the E-Verify Memorandum of Understanding. An employer may verify the employment eligibility of existing employees only when the employer has a federal contract or subcontract subject to such requirement.
The federal court’s Order of June 27, 2011 enjoins only portions of HB87. The ruling applies to Sections 7 and 8 of the bill, which would have allowed state and local law enforcement officers to check the immigration status of persons under certain circumstances involving suspected criminal activity. As long as the injunction remains in effect, “[s]tate and local law enforcement officers and officials have no authorization to arrest, detain, or prosecute anyone based upon Sections 7 and 8 of HB87.” See page 45 of the Order. Thus, Judge Thrash’s ruling will not delay the requirement for certain employers to register with and use E-Verify.