Immigration and Employers

Previously, I reviewed some of the provisions relating to illegal immigrants in Arizona’s recently signed immigration law 1070.  Today, I’ll review several items in the law relating to employers.

In the past few years, employers have been subject to a number of recent state initiatives to ensure that they are not hiring illegal workers.  Morgan, Lewis and Bockius, an international law firm, recently released a report detailing state immigration laws as they apply to employers. In recent years,  Congress has failed to enact clear immigration standards. Many states have enacted laws which specify employer responsibilities under federal immigration guidelines and give state officials and agencies clear authority to ensure employer adherence to Federal law.

The recently passed Arizona immigration law 1070 codifies into state law some specific details that would be in accord with Federal law and state penalties for anyone violating the law.  Many laws have two key features: the granting of authority, and the specification of penalties.  In short, power and money.

Section 5, paragraph A of the new Arizona immigration law 1070 makes it illegal for anyone to stop and hire people on the street but only if the motor vehicle “blocks or impedes the normal movement of traffic.”  Most cities have several locations where people of all types, both legal and illegal, can gather for day labor.  A contractor or homeowner pulls up, picks out as many people as they need who typically hop in the contractor’s or homeowner’s pickup or van and drive off to the job site.   As long as the contractor or homeowner pulls over to the curb and gets out of the flow of traffic, it is still legal in Arizona to hire people off the street, as long as they are legally allowed to work in the U.S.  More importantly, it gives a police officer authority to do more than simply give someone a traffic ticket for obstructing traffic when the police officer is well aware that there is a good chance that immigration laws are being violated. 

Section C make it specifically illegal for any illegal immigrant to “solicit work in a public place”.  Included in the  conventional legal definition of a public place is that it can be either public or private property.  This section of the law specifically prohibits illegal immigrants from soliciting work at a home improvement center.  More importantly, it gives police officers a clear legal authority on publicly accessible private property.  However, this section of the law does not explicitly prohibit a homeowner from hiring an illegal immigrant at a home improvement center.  That is contained in Section 6.

Most homeowners do not consider themselves to be an employer when they hire someone for a few hours.  A  definition of an employer is “A person or business who pays a wage or fixed payment to other person(s) in exchange for the services of such persons.” (http://www.lectlaw.com/def/e010.htm)

Section 6 prohibits an employer from “knowingly” employing an unauthorized alien.  That one word may protect a homeowner but it provides little protection for employers who are often held to a higher standard. Unlike other state laws, Arizona has at least specified in Section 6, paragraph I, what is clear evidence that an employer has not “knowingly” hired an unauthorized worker:  that the employer has used the Federal e-verify program to check the employee’s lawful status. Paragraph J provides the more usual non-specific protections found in law that an employer can “[establish] that it has complied in good faith” with the requirement of law.

Paragraph A of Section 6 also makes employers responsible for the legal status of any subcontractor’s workers.  Again, there is that legal keyword “knowingly”.  From my reading of the text, the general prohibitions largely follow existing federal guidelines but with specific penalties and forfeitures that convey the message loud and clear to employers, especially construction contractors, that Arizona means business when it comes to enforcement of immigration law.

Paragraph K and L of Section 6 details an employer’s affirmative defense of entrapment by law enforcement but the details are contradictory.  To establish entrapment, it is the burden of the employer to prove that law enforcement officers “urged and induced” (K3) the employer to commit a violation and that the employer was not already “predisposed” (L) to violate the law. Without a mind reading device, how does an employer prove that they were not “predisposed” to violate the law?  The employer must convince the court that the “idea of committing the violation” (K1) must have started with law enforcement.  Like other provisions of this law, the intent is to empower law enforcement, not protection of anyone’s rights, including employers.

Section 7 contains some rather severe penalties for Arizona employers who violate Arizona immigration law. Some are quite appropriate: an offending employer is ordered to terminate all other unauthorized aliens in its employ.   The more severe ones are found in paragraph F:  On the first violation, an employer has all its business licenses suspended for at least 10 days.  A second violation results in permanent revocation of all licenses (F2), essentially putting many offending employers out of business.

Arizona’s message to employers: WE MEAN BUSINESS.

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