DUFF, WHITE & TURNER, L.L.C.
Attorneys and Counselors at Law

SCHOOL LAW
"ISSUE OF THE MONTH"
July 2008

S.C. ILLEGAL IMMIGRATION REFORM ACT

On June 4, 2008, Governor Mark Sanford signed into law the new S.C. Illegal Immigration Reform Act (Act). Several of the Act's provisions involve employment authorization requirements for public employers, including school districts.

Employment Authorization Verification. Effective January 1, 2009, public employers will be required to register for and participate in E-Verify, a federal work authorization program. This internet-based system is offered through the U.S. Department of Homeland Security and the U.S. Social Security Administration at no charge to employers. It allows employers to compare data from the employee's required I-9 form against information in the E-Verify database to verify whether an employee is authorized to work in the United States.

Contractor Compliance. Public employers also will be required to ensure that their contractors abide by the employment authorization provisions of the Act. The Act requires contractors to either (1) participate in the E-Verify program to verify their employees' authorization to work in the United States (and require its subcontractors to do the same), or (2) confirm that each employee has, or is eligible to have, a state-issued driver's license or an official state-issued identification card. Public employers may comply with this provision of the Act by obtaining written certification from contractors and subcontractors that they will comply with the Act and provide documentation as necessary to prove compliance.

Wrongful Termination. The Act also gives employees who are authorized to work in the United States the right to sue for wrongful termination if they are terminated and replaced with a worker who is not authorized to work in the United States. The terminated employee must be able to establish that (1) the replacement worker was not authorized to work in the United States, (2) the employer knew or should reasonably have known of the replacement worker's unauthorized status, (3) the replacement worker was hired within 60 days of the employee's termination, and (4) the replacement worker performed the same duties as the terminated employee. The terminated employee must bring suit within one year of the alleged wrongful replacement. If the terminated employee prevails at trial, he or she would be entitled to reinstatement, back pay, any other actual damages, and attorney fees.

Public employers or contractors who comply with the Act in good faith may not be sanctioned or otherwise penalized if an employee is later determined to be unauthorized to work. Should you have any questions about the Act's employment authorization requirements as they apply to school districts, please feel free to contact this firm.