July 2022: Tennessee’s Revised Mandatory E-Verify Law Applies to More Employers

Update Applicable to:
All employers with 35 or more employees in the state of Tennessee.

What happened?
On March 29, 2022, the Senate Commerce and Labor Committee voted to amend Senate Bill 1853 (SB 1853) to expand the E-Verify program to businesses with 35 employees instead of 50 employees.

What are the details?
Effective 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 federal employer identification number (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.

For more information, please see the links below:

Senate Bill 1853 (SB 1853)

Article 1 – Article 2

What do employers need to do?
Employers should review the links provided above and periodically audit their employment verification records to ensure they have been completed fully and properly.