REVISED

Alabama Immigration Law Guidance for School Boards

The Beason-Hammon Alabama Taxpayer and Citizen Protection Act (Act No. 2011-535) includes several sections that affect the financial operations of Alabama school boards.  Legislation amending certain sections of Act No. 2011-535 has been signed by Governor Bentley and is available on the Secretary of State’s web page as Act No. 2012-491 [Act 2011-535 is codified in state laws as Title 31, Chapter 13 of the Code of Alabama 1975.]

1. Effective April 1, 2012, every business entity or employer in Alabama is required to enroll in E-Verify and follow the related federal law and regulations for verifying the employment eligibility of newly hired employees using the E-Verify program. [See Section 31-13-15(b)].

2. Two other sections of the law require business entities and employers with one or more employees working in Alabama to utilize the E-Verify program for newly hired employees as a condition of a contract, grant, or incentive awarded by a public entity on or after January 1, 2012. [See Section 31-13-9(a) & (b) and Section 31-13-25(b)].

A. Employees. After enrolling in the federal E-Verify program, the school board is required to verify the immigration status of a newly hired employee (including a substitute employee) as part of the employment process by utilizing the E-Verify program.  School boards are prohibited by federal laws from using E-Verify to pre-screen potential employees.  However, school boards may inform applicants and potential employees that the school board now uses the federal E-Verify program for newly hired employees by providing the following notification:

Alabama school boards are required by state law to verify the employment eligibility of newly hired employees by using the federal E-Verify program.  New employees are required to provide a Social Security number, an unexpired identity document that contains a photograph, and other acceptable documents that establish employment eligibility.  In addition to determining whether a new hire is authorized to work in the United States, E-Verify will confirm that the employee’s name and Social Security number match.  The U. S. Department of Homeland Security (DHS) has a service for employees to check their own employment authorization status before going through the E-Verify process at a new job.  The E-Verify Self Check gives new employees some additional time to correct any problems they find with their DHS or Social Security Administration records before employment begins.  Self-Check is located on the right side of the E-Verify website.

B. Contracts. Effective January 1, 2012, when the school board awards a contract or grant to a business entity or employer (that has one or more employees working in Alabama), Section 31-13-9(a) requires that the school board obtain a notarized affidavit and documentation of enrollment in the E-Verify program.  Act No. 2012-491 removed the affidavit requirement and now defines the term “contract” as “…a contract awarded by the state, any political subdivision thereof, or any state-funded entity that was competitively bid…”   Business entities or employers with one or more employees working in Alabama should be notified of the requirements to enroll in the E-Verify program before the contract is signed or bids are awarded.  The E-Verify documentation may not be necessary for some contracts awarded by the school board because the contracting entity does not have any employees working in Alabama.  The law does not address the documentation required in these situations.  A letter, fax, e-mail, or some type of documentation should be obtained from the business entity or employer stating that the contracting entity does not have any employees working in Alabama.

State law does not require that bid specifications include specific language addressing the requirements of the Beason-Hammon Alabama Taxpayer and Citizen Protection Act.  However, including the immigration requirements in the bid specifications would be beneficial in approving the contract after the bid is awarded.  Including the following language in bid specifications could avoid questions from potential bidders:

Alabama laws require that, as a condition for the award of a contract by a school board to a business entity or employer with one or more employees working in Alabama, the business entity or employer must provide documentation of enrollment in the E-Verify program.  During the performance of the contract, the business entity or employer shall participate in the E-Verify program and shall verify every employee that is required to be verified according to the applicable federal rules and regulations.  The contractor’s E-Verify Memorandum of Understanding must be included with the bid.  If you do not believe these requirements are applicable to your entity, include an explanation justifying such exemption.  An entity can obtain the E-Verify Memorandum of Understanding upon completion in the E-Verify enrollment process located on this federal website. The Alabama Department of Homeland Security has also established an E-Verify employer agent account for any business entity or employer with 25 or fewer employees that will provide a participating business entity or employer with the required documentation of enrollment in the E-Verify program.  An Employer Identification Number (EIN), also known as a Federal Tax Identification Number, is required to enroll in E-Verify or to establish an E-Verify employer agent account.

Act No. 2012-491 now requires school boards to include the following clause in all contracts or agreements:  “By signing this contract, the contracting parties affirm, for the duration of the agreement, that they will not violate federal immigration law or knowingly employ, hire for employment, or continue to employ an unauthorized alien within the state of Alabama.  Furthermore, a contracting party found to be in violation of this provision shall be deemed in breach of the agreement and shall be responsible for all damages resulting therefrom.”

The amended law also changed the definition of SUBCONTRACTOR to “A person, business entity, or employer who is awarded a portion of an existing contract by a contractor, regardless of its tier.”  Another provision states, “Furthermore, during the performance of the contract, the subcontractor shall participate in the E-Verify program and shall verify every employee that is required to be verified according to the applicable federal rules and regulations. This subsection shall only apply to subcontractors performing work on a project subject to the provisions of this section and not to collateral persons or business entities hired by the subcontractor.”