How the U.S. Supreme Court’s decision regarding the employer-sanction law affects business owners.In 2007, the Arizona State Legislature passed the Legal Arizona Workers Act (“LAWA”), also known as the Arizona employer-sanctions law. On May 26, 2011, the Supreme Court of the United States upheld the Arizona employer-sanctions law in Chamber of Commerce of the U.S. vs. Whiting, with 5 Justices voting to uphold the law and 3 Justices dissenting. The Supreme Court’s approval of the law means that the law is here to stay. How does this affect Arizona business owners?
The employer-sanctions law has been in effect in
Arizona since January 1, 2008. The Supreme Court’s decision simply allows the law to continue to be enforced; it does not change how it is enforced. According to the law, an employer shall not knowingly hire an undocumented worker. If an Arizonacourt finds that a business knowingly hired an undocumented worker, the first offense can result in a suspension of the business license for up to ten days. If a business is found to violate the law a second time, the employer’s business license will be permanently revoked. Factors that are considered when the court is making its decision are:
· The number of undocumented workers employed
· Any prior misconduct by the employer
· The degree of harm resulting from the violation
· The efforts made by the employer to comply with the applicable requirements
· The duration of the violation
· The role of the directors or officers in the violation
If the offense results in a business license being suspended, it will apply only to the licenses at the location of the infraction.
A business does not violate the employer-sanctions law based solely on the fact that it hired an undocumented worker. In order for sanctions to be imposed, the state must show that the business knowingly hired the undocumented worker. The Supreme Court found that “an employer acting in good faith need have no fear of the sanctions.” One way for a business to show that it did not knowingly hire an undocumented worker is to use the federal E-Verify system, which is actually now mandatory under LAWA (despite the fact that it was intended as a “voluntary” program, and that participating employers must waive significant legal rights in order to participate). If a business uses the E-Verify system, the state will have an even greater challenge of showing that the employer knew that it was hiring undocumented workers.
According to the Supreme Court’s majority’s opinion, “for companies that are playing by the rules and using E-Verify in good faith, there’s virtually no risk that they will be captured by the
Arizona employer-sanctions law.” [Note, however, that the Justice writing that opinion did not offer to provide free legal counsel, in the event some unlucky employer doesget bitten by LAWA, despite their subjective “good faith”! ]
With the E-Verify system, it might take as little as a couple of minutes to check the status of each newly-hired employee. The time spent using the system may prevent future problems with the employer-sanction law. But keep in mind that most employers are only authorized to use E-Verify to confirm employment eligibility of new hires. The E-Verify rules specifically prohibit use of the system to check the immigration status of existing employees or others. Unfortunately, the system is far from fool-proof. It basically checks the information input by the employer against the Social Security Administration’s database. An example of where problems may arise is when a new employee has just arrived in the U.S. on a valid, employment-authorized visa. It may be many days before SSA’s records accurately reflect the status of newly-arrived workers – and if the U.S. employer runs an E-Verify check right away (as required under E-Verify), it is unlikely that employment authorization will be “Confirmed.”
Under the employer-sanctions law, an action against an employer is brought by the county attorney. Each county attorney can have a different standard for bringing a claim under the law. For example, a county attorney in
Maricopa County may bring a claim against a business while a county attorney in Pima County may find that same claim to be frivolous and do nothing about it. The strength with which the law is enforced will depend on the counties in which a business does its business.
In
Arizona, immigration has become a topic of great interest to the state legislators and new immigration legislation is constantly being considered. At times it may be difficult for a business owner to understand and implement the requirements of the employer-sanction law or other laws imposed by the state or federal government. A Mesa Arizona immigration attorney can advise you regarding your business’ employment and immigration issues to ensure that your business complies with the necessary laws.
How the U.S. Supreme Court’s decision regarding the employer-sanction law affects business owners.
In 2007, the Arizona State Legislature passed the Legal Arizona Workers Act (“LAWA”), also known as the Arizona employer-sanctions law. On May 26, 2011, the Supreme Court of the United States upheld the Arizona employer-sanctions law in Chamber of Commerce of the U.S. vs. Whiting, with 5 Justices voting to uphold the law and 3 Justices dissenting. The Supreme Court’s approval of the law means that the law is here to stay. How does this affect Arizona business owners?
The employer-sanctions law has been in effect in Arizona since January 1, 2008. The Supreme Court’s decision simply allows the law to continue to be enforced; it does not change how it is enforced. According to the law, an employer shall not knowingly hire an undocumented worker. If an Arizonacourt finds that a business knowingly hired an undocumented worker, the first offense can result in a suspension of the business license for up to ten days. If a business is found to violate the law a second time, the employer’s business license will be permanently revoked. Factors that are considered when the court is making its decision are:
· – The number of undocumented workers employed
· – Any prior misconduct by the employer
· – The degree of harm resulting from the violation
· – The efforts made by the employer to comply with the applicable requirements
· – The duration of the violation
· – The role of the directors or officers in the violation
If the offense results in a business license being suspended, it will apply only to the licenses at the location of the infraction.
A business does not violate the employer-sanctions law based solely on the fact that it hired an undocumented worker. In order for sanctions to be imposed, the state must show that the business knowingly hired the undocumented worker. The Supreme Court found that “an employer acting in good faith need have no fear of the sanctions.” One way for a business to show that it did not knowingly hire an undocumented worker is to use the federal E-Verify system, which is actually now mandatory under LAWA (despite the fact that it was intended as a “voluntary” program, and that participating employers must waive significant legal rights in order to participate). If a business uses the E-Verify system, the state will have an even greater challenge of showing that the employer knew that it was hiring undocumented workers.
According to the Supreme Court’s majority’s opinion, “for companies that are playing by the rules and using E-Verify in good faith, there’s virtually no risk that they will be captured by the Arizona employer-sanctions law.” [Note, however, that the Justice writing that opinion did not offer to provide free legal counsel, in the event some unlucky employer does get bitten by LAWA, despite their subjective “good faith”! ]
With the E-Verify system, it might take as little as a couple of minutes to check the status of each newly-hired employee. The time spent using the system may prevent future problems with the employer-sanction law. But keep in mind that most employers are only authorized to use E-Verify to confirm employment eligibility of new hires. The E-Verify rules specifically prohibit use of the system to check the immigration status of existing employees or others.
Unfortunately, the system is far from fool-proof. It basically checks the information input by the employer against the Social Security Administration’s database. An example of where problems may arise is when a new employee has just arrived in the U.S. on a valid, employment-authorized visa. It may be many days before SSA’s records accurately reflect the status of newly-arrived workers – and if the U.S. employer runs an E-Verify check right away (as required under E-Verify), it is unlikely that employment authorization will be “Confirmed.”
Under the employer-sanctions law, an action against an employer is brought by the county attorney. Each county attorney can have a different standard for bringing a claim under the law. For example, a county attorney in Maricopa County may bring a claim against a business while a county attorney in Pima County may find that same claim to be frivolous and do nothing about it. The strength with which the law is enforced will depend on the counties in which a business does its business.
In Arizona, immigration has become a topic of great interest to the state legislators and new immigration legislation is constantly being considered. At times it may be difficult for a business owner to understand and implement the requirements of the employer-sanction law or other laws imposed by the state or federal government. An immigration attorney can advise you regarding your business’ employment and immigration issues to ensure that your business complies with the necessary laws.
This blog article was written by Mark Egan, an Arizona immigration attorney at Gunderson, Denton & Peterson, P.C. If you have any questions, or would like to speak to an immigration attorney, feel free to contact us.
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Published By:
Gunderson, Denton & Peterson, P.C.
By Brent Gunderson
1930 N. Arboleda, Suite 201
Mesa, Arizona 85213
Office: 480-655-7440
Fax: 480-655-7099