July 1, 2011 Deadline for ALL Employers to Comply with Mississippi Employment Protection Act

By now, most employers have heard of the federal "E-Verify" program which is designed to identify and prohibit employment of illegal aliens. In the 2008 legislative session, the Mississippi Legislature adopted the "Mississippi Employment Protection Act" ("MEPA") which has features similar to the "E-Verify" Act, but is broader in its application.

Unlike federal law, the MEPA applies to every employer. An "employer" is defined as "any person or business that is required by federal or state law to issue a United States Internal Revenue Service Form W-2 or Form 1099 to report income paid to employed or contracted personnel in Mississippi." In other words, the MEPA applies to virtually everyone.

So what must the employer do under the MEPA? "Every employer shall register and utilize the status verification system [i.e., the federal E-Verify Program] to verify the federal employment authorization status of all newly hired employees." There are no exceptions! So if you are a small business and hire just one new employee, you are still covered and expected to verify the employment authorization status of the employee. Under the law, employers in the state of Mississippi shall only hire U.S. legal citizens or legal aliens. The E-Verify Program is the authorized means by which employers can verify the employee’s status.

The MEPA was implemented in stages since its adoption. However, effective July 1, 2011, the MEPA is fully implemented and, as mentioned previously, applies to all employers.

What are the consequences for failing to comply? Substantial! Any contract with the state or other public body can be cancelled and you can be ineligible for any public contracts for up to three years. You can also lose any license, permit, certificate or other document issued by any public entity which gives you the right to do business in Mississippi for up to one year. Effectively, these consequences could put you out of business, even if you do not hire an illegal alien! The mere failure to follow the verification requirements could subject you to these penalties.

Can the state do this? Yes. On May 26, 2011, the United States Supreme Court handed down a decision affirming similar laws in Arizona. In the case of Chamber of Commerce of the U.S.A. v. Whiting, the U.S. Supreme Court upheld Arizona’s law which the Court concluded did not preempt the federal law, but instead merely imposed licensing conditions on businesses operating within the state. The Supreme Court further concluded that nothing prevented states from making mandatory the federal E-Verify program. The MEPA appears to be consistent with the U.S. Supreme Court’s ruling and, therefore, would likely be upheld.

Bottom line: Comply with the MEPA. If you have not already registered for E-Verify, do so now and learn how to use it so that you will be ready on July 1st.

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