Volume 7, Issue 2
March 12, 2008
The enactment of Assembly Bill 383, originally designed to address the crime of human trafficking, impacts Nevada employers and provides solid justification for the use of the on-line verifications systems, such as the Social Security Number Verification System ("SSNVS") or the E-Verify program. The Bill creates the potential for state penalties to an employer who violates federal law by hiring unauthorized aliens and provides an affirmative defense for employers who verify the social security numbers of new employees. The Bill's provisions became effective October 1, 2007. First, the Bill requires the Nevada Department of Business and Industry to include on its Internet website a link to SSNVS. Second, it provides that if an employer is found by the federal government to have violated federal law by hiring or employing an unauthorized alien, the Nevada Tax Commission shall hold a hearing to determine whether state penalties should be assessed against the employer as the holder of a Nevada business license. If the Tax Commission determines that the employer violated federal law willfully, flagrantly, or otherwise egregiously, the Commission is required to impose an administrative fine against the employer in an amount to be established by regulations. (An employer may also be subjected to the revocation of its Nevada business license under NRS 360.798.) The employer can avoid such a finding by presenting evidence that it attempted to verify the social security number of the unauthorized alien within 6 months of his/her employment. Proof that an employer used SSNVS will constitute prima facie evidence that its violation was not willful, flagrant, or otherwise egregious. SSNVS is an on-line system, operated by the Social Security Administration ("SSA"), which allows employers to verify employees' social security numbers. This system uses SSA records and purports to be intended for "wage reporting purposes." Because AB 383 and the statute it amended, NRS 360.796, clearly contemplates the use of other proof by an employer to defend its employment actions, we believe employers can consider using the Department of Homeland Security's E-Verify program instead of SSNVS. E-Verify utilizes both SSA and DHS records and is specifically designed for immigration purposes - i.e., to allow employers to verify the employment eligibility of new employees. DHS is encouraging all employers to use E-Verify, which it will continue to improve and market to employers with the help of significant federal funding. Both systems are free and should be considered a supplement to (not a substitute for) an employer's obligation to complete I-9 Forms. SSNVS can be used for current or former employees. E-Verify cannot be used for current employees or on applicants as a pre-screening measure; it can only be used for new employees, after an offer of employment has been made and accepted and the I-9 Form has been completed. Neither system can be used selectively and instead must be used without regard to employees' actual or perceived national origin or race. Both programs provide detailed Manuals which explain how to use the systems, and the E-Verify program requires an employer posting. The E-Verify Manual sets forth specific directions and forms for an employer who receives a mismatch response. In sum, the Nevada Legislature wants employers to verify employees' social security numbers. The Legislature has clearly given employers a green light to use the SSNVS system; moreover, we believe prudent employers can use both the purpose and language of AB 383 to support a choice to instead use E-Verify. While some organizations are challenging E-Verify, the penalties for hiring unauthorized aliens are significant enough to justify the additional precaution. Indeed, the Justice Department recently increased civil fines for employers who break immigration laws; effective March 27, 2008, fines can now range from $375.00 to $16,000.00 per employee. See http://www.usdoj.gov/opa/pr/2008/February/08_ag_134.html.
Whichever system an employer chooses to use should be used consistently for all employees. To register for E-Verify, go to www.dhs.gov/E-Verify; to obtain more information on SSNVS, see http://www.ssa.gov/employer/ssnv.htm.
Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.