• E-Verify Mississippi Employment Protection Act (MEPA)
  • July 28, 2008
  • Law Firm: Brunini, Grantham, Grower & Hewes, PLLC - Jackson Office
  • On March 17, 2008, Governor Haley Barbour signed the Mississippi Employment Protection Act ("MEPA") into law. The mandate of MEPA is simple: employers doing business in Mississippi must only hire citizens of the United States and lawful foreign nationals. In progressive steps over the next three years, MEPA will impose a significant new layer of hiring requirements on virtually every employer doing business in the State of Mississippi.

    MEPA will require every employer in Mississippi to register and utilize "E-Verify'-an internet-based work authorization verification program operated and administered by the U.S. Department of Homeland Security, in partnership with the Social Security Administration. "E-Verify" allows employers to submit the social security numbers of new hires to verify their employment eligibility. While use of the system is voluntary under federal law, MEPA makes use of the system mandatory for Mississippi employers with 250 or more employees beginning July 1, 2008. Employers with 100-250 employees must be in compliance by July 1, 2009; employers with 30-100 employees by July 1, 2010; and all other employers by July 1, 2011. (The Legislature is considering changing these latter two compliance dates to January 1, 2010 and 2011, respectively.)

    Under MEPA an "employer" is a person or business that is required to issue a Form W-2 of Form 1099 to any employed or contracted personnel in Mississippi-thus burdening those businesses utilizing independent contractors, as well as traditional employees, MEPA also specifically targets so-called "third-party employers," such as employee leasing companies, and subcontractors. Several exemptions are provided to MEPA, including individual homeowners who hire workers on their private property for non-commercial purposes.

    The "E-Verify" program is nearly entirely Internet-based. Employers register for participation in "E-Verify" online (https://www.vis-dhs.com/EmployerRegistration). The verification process through "E-Verify" will vary depending on the size and unique needs of each employer. For small employers with one "hiring location," only one location will need to be registered and set-up as a verification site, while larger companies with multiple "hiring locations" can choose to designate one site to perform the employment verification inquiries on behalf of the entire company, or choose multiple sites to perform employment verification. "E-Verify" also provides for the "outsourcing" of the verification process through the use of "designated agents," or liaisons between "E-Verify" and employers who choose to have a third-party handle the submission of employment eligibility verification queries for newly hired employees.

    The penalties for violations of MEPA can be substantial, both to employers and employees. Under MEPA, employers that hire unauthorized workers may be declared ineligible for public contracts for up to three years, or may lose any license or permit to do business within the state for up to one year, or both. Additionally, MEPA appears to create a private right of action of discrimination for a discharged employee that is a U.S. Citizen or permanent resident alien, if the employer retained an unauthorized worker in a job category involving similar skill, responsibility, and working conditions. (The Legislature is considering a repeal of this portion of the Act.) However, an employer registering and using "E-Verify" is provided a safe-harbor against liability or suit under the MEPA. For workers, MEPA makes it a felony-punishable by up to 5 years in prison or a $10,000 fine or both-for an unauthorized alien to knowingly accept employment for which he or she was not authorized.

    Although several questions remain unanswered regarding MEPA, Mississippi's larger employers-meaning those with 250 or more employees-must begin to make plans for how their company plans to implement this new layer of hiring duties, which take effect July 1, 2008.

    E-VERIFY MANDATES, PENALTIES, AND WARRANTLESS SEARCHES

    • Employers (with 250+ employees) must begin using "E-Verify" system by July 1, 2008
    • All Employers in the State of Mississippi must comply with MEPA by July 1, 2011 (possibly as early as January 1, 2011)
    • Penalties for violations of MEPA include loss of rights to bid on public contracts for up to three years and/or the loss of business license in Mississippi for up to one year
    • MEPA makes it a felony for unauthorized workers (i.e., illegal aliens) to knowingly accept employment in the State of Mississippi
    • MEPA potentially creates a private right of action for U.S. citizens whose employers discriminatorily terminate them and retain unauthorized workers (Legislature is considering repealing)
    • The "E-Verify" Program is entirely Internet-based and therefore all employers will be required to have some form of access to the Internet by 2010
    • All Employers complying with MEPA are required to sign an agreement with the U.S. Government which allows the U.S. Department of Homeland Security and the Social Security Administration to conduct warrantless searches of employer records and information.