July 16, 2007
In the weeks leading up to the July 4 congressional recess, NRCA repeatedly warned
Congress that as bad as the status quo is, it would only worsen if Congress failed
to address the country's broken immigration system. And as NRCA feared, it took
little time for the states to begin filling the void of federal inaction on immigration
reform following Congress' failure to enact comprehensive reform. Less than one
week after the Senate effort to overhaul federal immigration law came to a screeching
halt, Arizona became the first state to move forward on immigration legislation
targeted at employers. It follows on the heels of similar action by Tennessee on
June 26, which didn't even bother to wait to see whether the Senate could produce
a bill. A summary of the two bills follows.
Arizona
On July 2, Arizona Gov. Janet Napolitano signed House Bill 2779 into law. Known
also as the "Fair and Legal Employment Act" or the "Legal Arizona Workers Act,"
this new law requires the attorney general or county attorney to investigate all
complaints relating to unauthorized workers and provides for a progressive penalty
system for those employers found in violation. It also requires all employers to
use the federal Basic Pilot Program (formerly known as the Employment Eligibility
Verification Program) for the purpose of verifying the eligibility status of new
employees from and after Jan. 1, 2008.
The law establishes two types of employment violations, "knowing" and "intentional"
employment of unauthorized aliens, and establishes different levels of liability
for employers found to be in violation of the law. Penalties for a first violation
for "knowingly" hiring an unauthorized worker include suspension of a business license
for a period of up to 10 days; the employer must sign a sworn affidavit stating
that the employer has terminated all unauthorized workers within three business
days after a finding of guilt; and the employer is subject to a three-year probationary
period. During this period, the employer must file quarterly reports with the county
attorney for each new employee hired by the employer.
Penalties for a first violation for "intentionally" hiring an unauthorized worker
include suspension of a business license of the entity for a minimum of 10 days;
the employer must sign a sworn affidavit stating the employer has terminated all
unauthorized workers within three business days after a finding of guilt; and the
employer is subject to a five-year probationary period. During this period, the
employer must file quarterly reports with the county attorney for each new employee
hired by the employer.
For a second violation of either offense during the probationary period, a court
must order the permanent revocation of all of the employer's business licenses immediately—effectively,
a business death sentence. The law goes into effect Jan. 1, 2008.
Tennessee
On June 26, Tennessee Gov. Phil Bredesen signed House Bill 729, which prescribes
penalties and fines for businesses employing illegal workers. Under the provisions
of the bill, it is an offense to "knowingly" or "recklessly" employ an illegal alien.
An employer is deemed to have "recklessly" violated the law with respect to a particular
employee if the employer requested, received and documented a federal I-9 form before
commencement of employment and the resident verification information later proved
to be false. Interpretation of how an employer would "knowingly" violate these provisions
is not addressed in the legislative text.
An employer would not be found in violation of either provision, with respect to
a particular employee, if the employer verified the immigrant status of the person
before employment by using Basic Pilot.
An employer found in violation of "knowingly" employing an illegal alien would be
charged with a Class E felony punishable only by a fine not to exceed $10,000. A
violation "recklessly" is a Class A misdemeanor punishable only by a fine not to
exceed $2,500. The legislation goes into effect Jan. 1, 2008.
A Dark Horizon
Absent a federal legislative fix, the future holds more of the same. When asked
why she signed the law, Napolitano explained that Congress' inability to enact comprehensive
immigration reform left her no choice but to sign the legislation.
Arizona and Tennessee aren't alone. Already, Arkansas, Colorado, Georgia, Louisiana,
Oklahoma and Texas have signed sweeping immigration laws, and we can expect more
of the same from other states. If there's any comfort to be taken by employers this
year, it's only that most of the state legislatures are no longer in session this
year. But rest assured that a flurry of legislative activity at the state level
will begin anew early next year.
Put simply, the status quo is unacceptable. U.S. citizens and businesses need and
deserve a plan by Congress to address the country's dysfunctional immigration laws.
States and local governments will continue to react to federal inaction with countless
immigration laws and enforcement measures, which NRCA believes are pre-empted under
the U.S. Constitution but which will result in lengthy litigation and a continuing
demonization of the contributions of immigrants. Further, the status quo will continue
to expose employers, who grapple daily with a broken legal structure, to unfair
liability. If nothing is done, businesses will be forced to close, and U.S. workers,
as well as immigrant workers, will lose jobs; jobs will be outsourced overseas where
there is an adequate work force; and our national and economic security will be
jeopardized.