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South Carolina Shuts Down Restaurant after Immigration Audit

  • April 29, 2011

South Carolina has shut down a restaurant for 10 days after finding that the restaurant employed persons not authorized to work.  This move by the South Carolina Department of Labor, Licensing and Regulation arises out of a plan to audit 4,000 employers in 2011 for compliance with the South Carolina Illegal Immigration Reform Act.  Employers found in violation of the Act face stiff civil fines and negative publicity and may be reported to U.S. Immigration and Customs Enforcement or, as in this case, even shut down.  LLR has hired 21 investigators to support its aggressive investigation strategy.

The Act’s Requirements

The South Carolina Illegal Immigration Reform Act provides for employment licenses for all businesses in South Carolina.  An employer is permitted to employ persons only if its license is in good standing.

The Act prohibits the employment of persons who are not authorized to work.  It also requires South Carolina employers to verify the legal status of employees using a South Carolina driver’s license or ID card or a license from one of 26 other states currently deemed to have suitable license eligibility requirements.  Alternatively, employers may use E-Verify, a federal online system that compares Social Security numbers with the databases of the Department of Homeland Security and the Social Security Administration.

Penalties

The South Carolina Department of Labor, Licensing and Regulation investigates complaints and audits employers for SCIIRA compliance.  The law mandates a fine of $100 to $1,000 for each violation of the Act’s verification requirements.  The penalties are more severe for the knowing or intentional employment of unauthorized workers.  In that case, the employment license may be suspended or revoked, effectively shutting down the employer.
 
All violations must be reported on the LLR’s website.  Media outlets actively monitor these reports, and some employers have been subject to substantial negative publicity and even public protests as a result of a violation.  In addition, LLR is required to report the suspected employment of any unauthorized worker to ICE.

Discrimination Lawsuits

A terminated employee who is replaced by an alien that the employer knew or reasonably should have known is not authorized to work in the United States may sue the employer for discrimination under the Act.  As South Carolina employers seek to comply with the Act and other immigration law, they must be especially watchful of any action against an employee that may be interpreted as discrimination on the basis of national origin or any other protected status.

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Jackson Lewis attorneys have assisted many employers with immigration audits and investigations and navigated companion publicity, discrimination, and federal immigration perils.  In addition to assisting with cost-effective preventive strategies, attorneys in Jackson Lewis’ Global Immigration practice group also advise on I-9 audit, hiring practices, and federal and state immigration law compliance issues across the country. 

©2011 Jackson Lewis P.C. This material is provided for informational purposes only. It is not intended to constitute legal advice nor does it create a client-lawyer relationship between Jackson Lewis and any recipient. Recipients should consult with counsel before taking any actions based on the information contained within this material. This material may be considered attorney advertising in some jurisdictions. Prior results do not guarantee a similar outcome.

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