By Ashley Fletcher Frampton
aframpton@scbiznews.com
Published Oct. 2, 2009

State officials made a significant change this week to the employer audits that began July 1 under the state’s new immigration law.

The S.C. Department of Labor, Licensing and Regulation is now offering a one-page statement for employers to sign affirming that they are not knowingly or intentionally employing people unauthorized to work in the United States.

The form, put in use Monday, replaces one of two audit procedures that the agency has used in the first three months that the law has been in effect for businesses with 100 or more employees.

The new immigration law, passed in 2008, sets out acceptable methods for verifying the work status of employees hired after July 1, 2009, including the inspection of driver’s licenses or the use of the federal E-Verify system.

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One-page Affirmation of Legal Work Status from LLR

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State auditors have been asking randomly selected employers to show they are using one of the approved methods. Auditors also have been asking employers to show how they verified the work status of some employees hired before July 1.

Some in the business community had complained about the second portion of the audit. State officials said they were using the procedure to make sure employers were not “knowingly or intentionally” employing illegal workers, language that was set out in the new law along with the new hiring requirements.

But the S.C. Chamber of Commerce and several private employment lawyers have said the new immigration law was meant to focus on workers hired after July 1. They said that requiring proof of documentation for workers already on board is the duty of federal immigration officials. Businesses should not be subjected to two different inspections from two levels of government, they said.

Business representatives have been in talks with the state agency since July about concerns with enforcement of the new law. Some had said the matter could ultimately be settled in court if a compromise was not reached.

Both sides said the new one-page form strikes the desired compromise.

“We think it’s a good solution,” said Jim Knight, spokesman for the state agency. “It gives us the documentation that we need to show that the employer is complying with the law. And it eliminates a lot of time and effort on the part of the employer.”

Knight said the reduction in time spent in compliance audits allows state auditors to cover more businesses with limited resources.

Otis Rawl, president and CEO of the state chamber, said his group is happy with the change. Rawl referred questions about the specifics to lawyers that the chamber has organized to work with the state agency on changes.

Fred Manning, a lawyer with Fisher & Phillips in Columbia, said the new form essentially puts the focus of state compliance audits back on the provision in state law for new hires. Manning said it’s a less intrusive way for the state agency to fulfill the provisions of the act.

“I think there’s going to be less push-back from employers right now under this procedure,” he said.

David Dubberly, a lawyer with Nexsen Pruet in Columbia, called the agreement a win-win. He said the law doesn’t authorize the state to interview employees and check their documents if they were on board before July 1.

“This allows the state and the business to say, ‘OK, if you can affirm that you have had systems in place and that you have been checking the new hires even before July 1, we are not going to do the interviews and the inspections. We’re going to concentrate on who you’ve hired since July 1,’” Dubberly said.

If employers are not willing to sign the document, the state will use the audit procedure it used previously, Knight said.

The form includes a warning that employers found guilty of falsifying the form will be fined within the court’s discretion or imprisoned for up to five years, or both. That’s in addition to the penalties included in state law for knowingly and intentionally employing illegal workers.

“Business owners are not going to sign something that they can go to jail for if they’re untruthful on,” Dubberly said.

Knight said the change does not affect audit procedures for workers hired after July 1.

The immigration law takes effect for businesses with fewer than 100 employees on July 1, 2010.

Read more on this issue in the Oct. 12 print issue of the Charleston Regional Business Journal.