To Date Eight States Have Enacted New Employment-Related Immigration Laws in 2011
So far this year, eight states have adopted new immigration laws imposing requirements on employers, including mandating the use of the federal E-Verify system to confirm the immigration status of new hires and imposing penalties for failing to do so. To the extent these laws impose penalties in the form of a suspension or revocation of the employer’s business license, they are likely to withstand scrutiny under the Supreme Court’s recent holding that federal law does not preempt an Arizona law imposing similar sanctions on employers for failing to use the federal E-Verify system or knowingly hiring an unauthorized alien. Chamber of Commerce v. Whiting, 131 S. Ct. 1968 (2011); Bloomberg Law Reports, Labor & Employment Law, Vol. 5, No 23 (June 6, 2011). Although federal district courts in Georgia and Indiana have held that certain non-employment related provisions of those states’ immigration laws are invalid, no court has yet addressed the employment-related provisions of any of the new state laws. A state-by-state summary of the employment-related provisions of the new laws is set forth below. For additional information about an employer’s obligation to verify employees’ work authorization the under federal law, see “ICE Form I-9 Audits May Result in Significant Civil and Criminal Penalties Being Imposed on Employers,” Bloomberg Law Reports, Labor & Employment Law, Vol. 5, No. 29 (July 11, 2011).
Effective January 12, 2012, House Bill 56: (1) require business entities, including sub-contractors, seeking any contract, grant, or incentive with or from the state, to verify the employment eligibility of their employees through the use of the federal E-Verify; (2) prohibit unauthorized aliens from seeking employment in the state; (3) prohibit employers from knowingly employing an unauthorized alien; and (4) make it a discriminatory practice for an employer to fail to hire a legally present job applicant or discharge an employee while retaining an employee who is an unauthorized alien under certain conditions. Penalties for violation of the Act include revocation of the employer’s business license and termination of contracts with state entitles.
On July 8, 2011, opponents of the new law filed an action in the U.S. District Court for the Northern District of Alabama challenging the new law. See Hispanic Interest Coalition Of Alabama v. Bentley, 11-CV-02484 (N.D. Ala. July 8, 2011).
The employment related provisions of House Bill 87, the Illegal Immigration Reform and Enforcement Act of 2011, affect private companies with more than ten employees, and private companies contracting with the state, counties, and municipalities, including their departments and agencies. In some circumstances, the requirements also affect subcontractors. The primary requirement is that covered employers and subcontractors must use the federal E-Verify system to verify work authorization of new hires and are subject to civil and criminal penalties for failing to do so.
Private employers with 500 or more employees must comply as of January 1, 2012; private employers with between 100 and 499 employees must comply by July 1, 2012; and private employers with more than 10 but fewer than 100 employees must comply by July 1, 2013.
The U.S. District Court for the Northern District of Georgia recently struck down two provisions of the Act that penalized individuals who transported or harbored illegal immigrants and that authorized police officers to verify the immigration status of someone who could not provide proper identification. Georgia Latino Alliance for Human Rights v. Deal, No. 11-CV-1804, 2011 BL 168769 (N.D. Ga. June 27, 2011). However, the employment-related provisions of the Act were not affected by the decision.
Senate Act No. 590, effective July 1, 2011, provided that the state may sue employers who do not use E-Verify to recover unemployment insurance benefits, as well as reasonable attorneys’ fees and costs, paid to a worker that the employer knew was not authorized to work. The new law also creates adverse tax consequences for employers of unauthorized immigrants who do not use E-Verify.
Further, the Act requires that state agencies use E-Verify for all new hires and bars state agencies from entering into (or renewing) contracts with a contractor unless the contractor (and its subcontractors) participates in E-Verify and certifies that it does not knowingly employ unauthorized aliens. Contractors who use E-verify will have a rebuttable presumption that they did not knowingly employ an unauthorized alien.
Under the Act, day laborers age 18 or older must attest to their employment authorization on a Form I-9 before starting work. In addition, knowingly or intentionally transporting, harboring or concealing an illegal alien for commercial advantage or financial gain is now a misdemeanor or felony depending on the number of persons involved.
The U.S. District Court for the Southern District of Indiana struck down two parts of the new law that permitted the arrest of individuals sued by immigration authorities and that prohibited immigrants from using identification cards issued by consulates. Buquer v. City of Indianapolis, No. 11-CV-708, 2011 BL 167760 (S.D. Ind. June 24, 2011). However, the employment-related provisions of the Act were not affected by the decision.
Effective August 15, 2011, House Bill 646 amends Louisiana Revised Statute 23:995, which prohibits the employment of persons unauthorized to work in the U.S., by providing a safe harbor for employers who either use the federal E-Verify worker verification system or keep on file photo identifications of its employees and copies of birth certificates, naturalization certificates, certificates of citizenship or other documents proving the legal status of workers. Employers who do not do so and are found to violate Section 23.995 are subject to penalties, including escalating fines and license suspensions.
— North Carolina
House Bill 36 requires private employers, counties and cities to use the federal E-verify program to verify the work authorization of newly hired employees. The new law does not apply to temporary workers employed for 90 or fewer days during a 12-consecutive-month period. The law also imposes specified civil penalties on employers found to violate the law and establishes procedures for filing complaints against alleged violators. The law is effective October 1, 2011 for county and municipal employers; October 1, 2012, for employers with 500 or more employees; January 1, 2013, for employers with 100-499 employees; and July 1, 2013, for employers with 25-99 employees.
— South Carolina
The employment-related provisions of Act No. 69 OF 2011, effective January 1, 2012, amend the South Carolina Illegal Immigration and Reform Act, S.C. Code § 41-8-10, et seq., by prohibiting a person unlawfully in the U.S. from soliciting work and providing that employers must verify the work authorization of new hires through the federal E-Verify system within three business days of hire. Failure to do so, or knowingly hiring an unauthorized alien, may result in revocation of the employer’s license. Further, South Carolina employers may no longer confirm a new employee’s employment authorization with a driver’s license or state identification card, even though employers completing the required Form I-9, the federal employment eligibility verification form, may rely on such identification.
The Tennessee Lawful Employment Act, Chapter No. 436 of the Public Acts of 2011, requires employers to use the E-Verify system to verify that new hires are authorized to work in the U.S. or to request and maintain specified documents establishing the new hire’s valid U.S. work authorization. Employers who confirm an employee’s authorization to work through E-Verify will be protected, even if the employee turns out to be not authorized to work in the U.S. The Act imposes civil penalties, including fines and suspension of the employer’s license to do business in the state, for violations.
These new requirements are effective for governmental and private employers with 500 or more employees on January 1, 2012; for private employers with 200-499 employees on July 1, 2012; and for all employers with more than six employees on January 1, 2013.
The Guest Worker Program Act (H.B. 116) establishes a guest worker program for undocumented workers that reside in Utah, but requires them to pay a substantial fee, provide extensive documentation, and agree that all the information they provide can be shared with the federal immigration authorities. Apparently recognizing that the program likely conflicts with federal immigration law (and therefore is preempted), the Act provides that the program will not start until the earlier of 120 days after the state obtains the necessary “waivers, exemptions, or authorizations [from the federal government] to implement the program” or July 1, 2013. See Utah Statutes 63G-12-202.
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