FEBRUARY 19, 2008

LEGAL ARIZONA WORKERS ACT

UPHELD AS CONSTITUTIONAL

ENFORCEMENT PROCEEDINGS MAY BEGIN AS EARLY AS MARCH

The United States District Court for the District of Arizona has upheld the constitutionality of the Legal Arizona Workers Act, A.R.S. §§ 23-211
et seq. (the Act).

The challengers sought a preliminary and permanent injunction to prevent the enforcement of the Act, which was enacted in July 2007 and went into effect on January 1 this year. On January 16, 2008, the matter went to trial. On February 7, 2008, the Court granted judgment in favor of the County Attorney defendants, finding that the Act is constitutional.

Prohibits “Intentionally” or “Knowingly” Hiring Aliens

The Act, applicable to any employer that employs one or more individuals who perform services in Arizona, prohibits employers from intentionally or knowingly employing an unauthorized alien.

Under the Act, an employer has “intentionally” employed an unauthorized alien if the employer’s objective in hiring the employee was to employ an unauthorized alien. An employer has “knowingly” employed an unauthorized alien if the employer employed or continued to employ an employee with actual knowledge or with reckless disregard of the fact that the person was an unauthorized alien (which may include a failure to verify eligibility through E-Verify).

E-Verify

The Act requires all Arizona employers (regardless of the number of employees) to participate in the E-Verify program (formerly known as the Basic Pilot Program) as part of the I–9 employment verification process. Arizona employers must verify employment eligibility through E-Verify in addition to existing federal I–9 requirements.

All Complaints Must be Investigated

Under the Act, the Arizona Attorney General and county attorneys must investigate all complaints against employers. If a complaint is not found frivolous, the county attorney must bring a civil lawsuit against the employer for knowingly or intentionally employing an unauthorized alien and must also notify federal Immigration and Customs Enforcement and local law enforcement of the unauthorized alien.

In a civil lawsuit, the court must consider only the federal government’s standard for determining employment eligibility in deciding whether an employee is unauthorized, though the employer may rebut this presumption by proving the employee’s lawful status. An employer may also defend itself by establishing that it complied in good faith with its I–9 requirements and verified work authorization through E-Verify, thereby creating a rebuttable presumption that the employer did not intentionally or knowingly employ an unauthorized alien.

The Act Includes Strict Sanctions

Sanctions against employers found to have violated the statute include suspension or permanent revocation of authorization to do business in Arizona, three- or five-year probationary periods (depending upon whether the employer intended to hire an unauthorized alien, or simply had knowledge that the employee was an unauthorized alien), and public identification as a sanctioned business.

Legal Challenges Continue

The challengers to the Act sought a preliminary and permanent injunction to prevent the enforcement of the Act. When the District Court granted judgment in favor of the County Attorney defendants, the challengers then filed a notice of appeal. The challengers also seek to enjoin enforcement of the Act pending the appeal. However, the District Court has already indicated that it is unlikely to order such an injunction.

Looming Enforcement

At a December 18, 2007 hearing, the County Attorney defendants stated that they will not bring any enforcement proceedings before March 2008. Nevertheless, employers will remain exposed to legal liability for violations that occur prior to March 2008.

Next Steps for Arizona Employers

  • Visit the E-Verify website and become familiar with E-Verify and its requirements.
  • Review current I–9 eligibility verification procedures to ensure compliance and to ensure smooth transition to additional I–9 procedures.
  • Consider current company procedure for receiving and dealing with governmental inquiries and responding to investigations.
  • Review current recruiting, interviewing, and hiring procedures generally to ensure compliance with the Act — know your job candidates!