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Alabama gained notoriety in June when Governor Robert Bentley signed into law HB 56, the Beason-Hammon Alabama Taxpayer and Citizen Protection Act. HB 56 quickly gained a reputation as the most aggressive in a long line of state immigration legislation and attracted interest (and ire) from the federal government, immigrant rights groups, and others. A recent federal court decision has halted implementation of certain provisions of the Act, but the central requirement that employers use E-Verify remains intact and on schedule. To learn more about the decision, the E-Verify requirements, and their implications for employers, please continue reading Littler's ASAP, Despite Legal Challenge, Effective Date Approaches for Key Provisions of Alabama Immigration Legislation, by Jorge Lopez and Patrick Simpson.

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The National Conference of State Legislatures (NCSL) recently announced the results of its report on immigration-related laws and resolutions introduced by state legislatures in 2011. Employment remained one of the top issues in immigration-related legislation, along with law enforcement and identification/driver’s licenses.

Although the number of introduced measures increased by 16% during the first half of 2011, compared to the same period in 2010, the number of enacted bills decreased by 18%.

As reported by the NCSL, the surge in immigration-related proposals at the state level started in 2006, when the number of bills introduced (570) and laws enacted (84) essentially doubled compared to 2005. The most dramatic increase in terms of legislation volume occurred in 2007: 1,562 measures were introduced, with 240 laws enacted and 50 resolutions adopted. Since 2007, the number of immigration-related measures has always been well above 1,000, with at least 200 laws enacted each year.

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On September 6, 2011, the California State Senate passed Assembly Bill 1236 (AB 1236), the Employment Acceleration Act of 2011, which now heads to Governor Jerry Brown. The Act
prohibits the state, counties, cities and special districts from mandating that employers use an electronic employment verification program (such as E-Verify), except when required by federal law or as a condition of receiving federal funds. The Act’s prohibition on mandating use of an electronic employment verification program specifically applies in the following circumstances:

• as a condition of receiving a California government contract;
• as a condition of applying for or maintaining a business license; or
• as a penalty for violating licensing or other similar laws.

The findings and declarations set forth in AB 1236 include, among others:

• E-Verify’s inaccuracies have prevented employers from hiring employees “in a timely manner;”
• had E-Verify been mandatory in 2010 it would have cost employers $2.7 billion; and
• the net societal cost of all federal contractors using E-Verify would be $10 billion per year, according to a U.S. Chamber of Commerce estimate.

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U.S. District Judge Sharon Blackburn has ruled (pdf) that a complaint challenging Alabama’s recently-enacted immigration law lacks specificity, and ordered the plaintiffs to amend the pleading. The complaint, filed by 36 immigration and civil rights organizations against 11 defendants, contains “380 paragraphs, including 144 paragraphs of facts and history,” and 9 counts–with each count incorporating all previous factual allegations. Labeled a “shotgun complaint” by Judge Blackburn, the plaintiffs were directed to clarify, by September 16, 2011, for each discrete claim:

• which plaintiff(s) asserts the claim;
• the defendant(s) against whom relief is sought; and
• all factual allegations that support the discrete claim.

The organizations’ lawsuit is one of three challenges to the law; the U.S. Department of Justice and a group of religious leaders also have filed suit. As discussed here previously, on August 29, 2011, Judge Blackburn temporarily enjoined enforcement of the law.

Photo credit: Christian Baig Photography

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By Kelly Reese

On August 29, 2011, U.S. District Judge Sharon Blackburn temporarily enjoined the enforcement of Alabama’s recently enacted immigration law, House Bill 56 (HB 56), which was due to take effect September 1. The injunction will remain in effect until the court enters its ruling on the preliminary injunction or until September 29, whichever comes first. Judge Blackburn’s Order (pdf) states that the court will rule on the merits of the pending Motions for Preliminary Injunction no later than September 28.

The U.S. Department of Justice (DOJ) filed the lawsuit in the U.S. District Court (Northern District of Alabama) against the State of Alabama, alleging that HB 56 is preempted by federal law. The DOJ asked the court to find HB 56 invalid, null and void; and sought a preliminary and permanent injunction prohibiting its enforcement.

Two similar lawsuits, also seeking preliminary and permanent injunctions prohibiting enforcement of HB 56, were filed by religious and public interest entities. Those two cases have been consolidated with the DOJ lawsuit.

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During a recent White House press conference, President Obama was asked whether he would veto a mandatory E-Verify bill that did not include immigration reform provisions. Without directly answering the question, Obama stated, “We may not be able to get everything that I would like to see in a package, but we have to have a balanced package.” Though Obama acknowledged that the E-Verify employment authorization system can be “an important [immigration] enforcement tool,” he added a caveat – “if it’s not riddled with errors.”

Skepticism surrounding E-Verify’s accuracy is not new. The Department of Homeland Security and U.S. Citizenship and Immigration Services have been gradually making improvements to the E-Verify system, many of which are intended to improve its accuracy rate.

The need to attain an acceptable level of accuracy grows as the number of E-Verify users expands. Computerworld reports that more than 250,000 U.S. employers have already signed up for E-Verify, with another 1,300 new businesses enrolling each week. State and local legislation mandating E-Verify use is continually rising. Additionally, in June 2011 two bills were introduced in Congress that would require all employers to use E-Verify. 

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Alabama is now the most recent state to require all employers to enroll in and verify employment eligibility through E-Verify. This requirement goes into effect on April 1, 2012. The new law prohibits all Alabama employers, public and private, from knowingly employing unauthorized aliens. Additionally, the law prohibits state government entities from awarding contracts or providing grants or other incentives to employers that fail to enroll in and verify employment eligibility through E-Verify. This provision goes into effect on January 1, 2012. Violations of the law can result in significant penalties for employers. The new law also creates a state law cause of action for U.S. citizens and authorized aliens against employers that refuse to hire or that discharge them while knowingly or negligently employing unauthorized aliens. To learn more about the new law and its implications for employers, please continue reading Littler's ASAP Alabama Is Latest State to Enact E-Verify Requirement by Kelly Reese.

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The Florida House of Representatives’ Economic Affairs Committee recently approved a bill, HB 7089, that would require all employers in the state to use E-Verify to authenticate newly hired employees’ legal work status. The bill does not require employers to verify current employees’ status.

The proposed law would prohibit an employer from “knowingly” employing an unauthorized alien, and violators would be subject to administrative investigation and possibly administrative and civil actions and penalties. Additionally, a business failing to use E-Verify would lose its business license until it registers to use E-Verify and provides the appropriate licensing agency an affidavit demonstrating such registration. Noncompliant government contractors would have their contracts rescinded and become ineligible for future public contracts.

As reported in The News-Press, the bill faces opposition on many fronts, including labor and business groups. Representatives of Florida’s agriculture and tourism industries contest E-Verify’s efficiency and contend that the bill would damage these industries. Additionally, immigrants staged a pray-in during the Economic Affairs Committee hearing. 

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By Neil M. Alexander and Michael J. Lehet

In our July 2010 ASAP Update, Littler discussed the federal district court decision temporarily enjoining enforcement of certain provisions of Arizona's controversial "Support Our Law Enforcement and Safe Neighborhoods Act" ("SB 1070"). On April 11, 2011, the Ninth Circuit Court of Appeals issued an opinion affirming the district court ruling.

Like the district court decision, the Ninth Circuit opinion does not impact those provisions of SB 1070 that amend the Legal Arizona Workers Act (LAWA). Consequently, LAWA will continue to provide an entrapment defense to employers charged with knowingly or intentionally hiring undocumented workers. LAWA will also continue to require that employers keep a record of each E-Verify verification. Furthermore, the Ninth Circuit opinion does not affect the language of SB 1070 making it a Class 1 Misdemeanor for occupants of a motor vehicle stopped on a street, roadway, or highway, to hire and pick up, or attempt to hire and pick up, passengers for work at a different location, if the motor vehicle blocks or impedes the normal movement of traffic.

The opinion is the second Ninth Circuit decision to weigh in on Arizona's recent immigration debate. As explained in our September 2008 ASAP, Ninth Circuit Court of Appeals Upholds Legal Arizona Workers Act, the court previously sided with the district court and ruled that LAWA was constitutional. That decision is currently on review before the U.S. Supreme Court. A ruling from the high court is expected within the next several months.

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On March 3, 2011, the Georgia House of Representatives passed, by a 113-54 vote, House Bill 87 (pdf), an immigration enforcement bill that, among other provisions, would require employers to use E-Verify to authenticate their new hires’ legal work status. The bill, known as the Illegal Immigration Reform and Enforcement Act of 2011, now moves to the Senate, where a committee endorsed a similar measure on March 2. As reported by the Atlanta Journal-Constitution, HB 87’s controversial provisions, such as authorizing state and local police to verify the immigration status of certain criminal suspects, prompted “hundreds” of demonstrators to gather outside the Georgia Capitol during the House debate to “denounce the measure as an ‘Arizona copycat law.’”

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Arizona legislators continue to press forward with immigration-related proposals. State Senate President Russell Pearce, sponsor of the infamous SB 1070, recently introduced SB 1611 (pdf), a wide-ranging immigration enforcement bill. On February 22, 2011, the State Senate Appropriations Committee approved the bill by a 7-6 vote, with two committee Republicans voting against the bill, according to Courthouse News Service.

Of interest to employers is Section 9 of SB 1611, which would amend Arizona’s E-Verify statute. Since December 31, 2007, Arizona employers have been required to use E-Verify to authenticate new hires’ legal work status (Ariz. Rev. Stat § 23-214). SB 1611 amends that statute to permit business license suspension for failure to provide proof that the entity is registered with, and participating in, the E-Verify program. If the state attorney general discovers noncompliance, notice will be issued to the business, which will have six months to comply. If, after six months, the business remains noncompliant, the attorney general can petition a state court to order the appropriate agencies to suspend all licenses held by the business. The suspension will remain in effect until the business complies.

The bill’s other enforcement provisions include:

• making it a crime (punishable by a 30-day minimum jail sentence) to drive a motor vehicle while in the country illegally;
• requiring schools to collect information on students’ legal status and to report to law enforcement if families do not provide the necessary documents or if the documents appear false; and
• requiring public agencies to verify renters’ immigration status and to evict everyone living in a unit if any person living in that unit is found to be an illegal immigrant.

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As discussed here previously, legislators in many states have been introducing legislation mimicking Arizona’s controversial immigration legislation, SB 1070. In the past week, such legislation has progressed, albeit slightly, in South Carolina, but has been taken off the table in Colorado.

In South Carolina, The Sun News reported that S. 20, an Arizona-style immigration bill introduced by Senator Lawrence Grooms, was moving forward. However, after clearing the State Senate Judiciary Committee, the bill failed to garner sufficient votes to set it for Special Order, i.e., moving the bill to the top of the calendar. Accordingly, it is presently unknown when the bill will be voted on by the entire State Senate.

In Colorado, the sponsor of House Bill 1107, Rep. Randy Baumgardner, abandoned his attempt to institute an Arizona-like law, believing that legal challenges would burden taxpayers, reports Fox News Latino. On February 14, the House Committee on Agriculture, Livestock, & Natural Resources indefinitely postponed the bill. As we previously noted, a group of Republican Colorado lawmakers recently traveled to Arizona to learn more about its approach to immigration legislation.

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Florida recently became the 14th state to require government employers and contractors to use E-Verify to confirm employees’ legal work status. On his first day in office, January 4, 2011, Governor Rick Scott signed Executive Order Number 11-02, which took effect immediately and requires:

• all state agencies under the direction of the governor to verify employment eligibility of all current and prospective employees through E-Verify; and
• that such agencies’ contracts contain an express requirement that contractors use E-Verify to confirm the legal work status of: (1) their employees on public works projects in Florida; and (2) all persons, including subcontractors, assigned by the contractor to work on those projects.

Additionally, the order states that agencies not under the direction of the governor are “encouraged” to use E-Verify to verify current and prospective employees’ legal work status, and to require the same of those agencies’ contractors and subcontractors.

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With uncertainty surrounding immigration reform at the federal level, a growing number of immigration reform proposals are being made at the state level, many of which borrow measures from Arizona’s controversial SB 1070. Examples of recent immigration enforcement proposals include:

• A group of Republican lawmakers in Colorado, some of whom traveled to Arizona to learn more about its approach to immigration legislation, are discussing what should be included in immigration-related bills to be introduced in early 2011. One bill is expected to require Colorado employers to use E-Verify.
• In Florida, a senator has introduced a bill that would allow law enforcement officers—during a lawful detention or arrest—to ask for immigration documents if the officer suspects the detainee may be in the country illegally. The bill prohibits officers from using race as a reason for checking the detainee’s documentation.
• In Nevada, an assembly member has asked the state’s Legislative Counsel Bureau to draft a bill based on Arizona’s SB 1070; another assembly member has requested a bill requiring state employers to use E-Verify.
• Two senators in South Dakota are drafting a bill that would prohibit providing transportation or lodging to an individual known to be in the United States illegally. The bill also would prohibit illegal immigrants from asking for employment.
• In California, proponents of an SB 1070-style initiative have started collecting signatures in an effort to put the initiative on the February or June 2012 ballot.

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The Fresno Bee reports that some employers, particularly within the agriculture industry, will not use E-Verify, the federal electronic employment verification system, to authenticate new hires’ legal work status. Relying on figures provided by the federal government, the paper states that “[o]ut of thousands of businesses in Fresno, for example, only 179 use the program… although those numbers don't account for businesses that contract with personnel companies using the program.” Businesses cite two main reasons for their non-participation in E-Verify: (1) administrative burden; and (2) a shortage of available legal workers.

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Politico reports that candidates in 20 (out of 37) of this year’s gubernatorial races favor tough anti-immigration measures, be they a Democrat, Republican, or third-party candidate. Not all initially campaigned in support; however, conversion is unsurprising given candidates’ desire to secure the confidence, and votes, of an electorate that, recent polling data suggests, increasingly favors tougher immigration laws.

Jobs remain scarce, benefits are decreasing, and supporters of strict immigration laws believe such measures will improve the outlook for both. Moreover, many voters are dismayed by the stalled federal immigration reform and, accordingly, are pressing state officials to take up the legislative mantle. Politico anticipates that, if these candidates prevail, there will be a surge of legislation mandating that employers use E-Verify to authenticate workers’ legal status, as well as of legislation concerning immigration status in relation to drivers’ licenses, public assistance, and education.

Image credit: 3dbrained

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With the July 2, 2010 submission deadline approaching, individuals in Washington are trying to collect 241,153 signatures to place an immigration-related measure on the November ballot, reports the Seattle Times. Employment-related provisions of proposed initiative I-1056 (pdf) include:

• Requiring all employers, after making an offer of employment, to verify the individual’s eligibility to work in the United States, using programs such as E-Verify.
• Making it an unlawful employment practice to terminate a U.S. citizen, or a permanent resident applying for naturalization, when an illegal alien is employed at the same job site or in a similar position at a different site.

Since 2006, similar measures have failed to get certified, and the chances for a 2010 measure are slim, given the campaign’s lack of funds and the absence of major party support for the measure.
 

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The New York Times reports that the Massachusetts Senate has voted 28 to 10 in favor of an immigration-related amendment (pdf) to the state budget bill that would require state contractors to verify that their workers are legally authorized to live and work in the United States. The proposed law also would penalize contractors violating the law by prohibiting them from doing business with the state. Additionally, the state attorney general’s office would be required to set up a hotline by which people could anonymously report alleged hiring of illegal immigrants, and to investigate such allegations.

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The Washington Post reports that acting Solicitor General Neil Katyal has submitted a brief (pdf) on behalf of the Obama administration urging the U.S. Supreme Court to review and invalidate the Legal Arizona Workers Act (LAWA), a 2008 law that imposes sanctions far greater than those prescribed by federal law on employers that hire illegal immigrants (Note: LAWA is a different law than Arizona’s recently enacted and controversial immigration enforcement law.). The petition (pdf) for Supreme Court review was originally filed by a coalition that includes the U.S. Chamber of Commerce, civil libertarians and Latino groups.

The brief presents the administration’s position that federal law preempts this state law, and argues that upholding the law would:

"disrupt a careful balance that Congress struck nearly 25 years ago between two interests of the highest importance: ensuring that employers do not undermine enforcement of immigration laws by hiring unauthorized workers, while also ensuring that employers not discriminate against racial and ethnic minorities legally in the country."

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The Arizona Daily Star reports that several days after S.B. 1070, Arizona’s controversial immigration bill, became law, the legislature passed H.B. 2162, which clarifies when police officers may inquire into an individual’s immigration status. Under H.B. 2162, an inquiry can occur if:

• an officer performs a lawful stop, detention or arrest based on a town, city, county or state law; and
• the officer has reasonable suspicion that a person is an alien and is unlawfully present in the United States.

The language in H.B. 2162 does not amend S.B. 1070; however, when S.B. 1070 takes effect, the revised language in H.B. 2162 will take precedence because it was adopted more recently.

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A controversial Arizona immigration enforcement bill (S.B. 1070) moved one step closer to becoming law when the state senate approved the measure on April 19. The bill has been sent to Governor Jan Brewer for her signature or veto. As reported by The Los Angeles Times, most observers expect her to sign the bill. Brewer has until April 24 to act on the bill; if she neither signs nor vetoes the bill, it will become law within 90 days of the end of Arizona’s legislative session.

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AZCapitolTimes.com reports that Arizona’s senate, by a party-line 17-13 vote, passed a broad, immigration-focused bill covering a wide range of topics including law enforcement procedures, criminal law, and traffic congestion. The bill would:

• require police officers to make a reasonable attempt to determine a person’s immigration status when “practicable;”
• allow illegal immigrants to be charged with trespassing;
• make it unlawful for anyone seeking work, regardless of their immigration status, to enter a vehicle stopped on the street;
• penalize drivers who impede traffic in an attempt to hire a day laborer;
• prohibit state and local governments from adopting policies that restrict the enforcement of immigration laws; and
• require state and local governments to comply with, and assist in enforcing, federal immigration laws.

The bill now moves to Arizona’s house of representatives for consideration.

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As reported at Stateline.org, a new report  finds that the estimated 12 million illegal immigrants in the United States are settling in states such as Georgia and North Carolina, where relatively few lived 20 years ago. The findings could have financial implications for already stressed state and local governments.

Highlights of the report, conducted by the nonpartisan Pew Hispanic Center, include:

• California leads the nation with 2.7 million illegal immigrants, but its share of the national total has dropped from 42% in 1990 to 22% in 2008. Instead, larger numbers of illegal immigrants are moving to states in the Southeast, Southwest, Mid-Atlantic, Midwest and Mountain regions.
• Florida, Illinois, New Jersey, New York and Texas have retained their appeal to illegal immigrants.
• The children of illegal immigrants comprise 6.8% of K-12 students in the U.S., up from 5.4% in 2003.
• Six in 10 illegal immigrants lack health insurance, more than double the uninsured share among legal immigrants and four times the uninsured share among U.S.-born adults.
• An estimated 8.3 million of the nation’s 154 million people in the labor force are illegal immigrants, according to 2008 estimates. That is a share of about 5.4%, up from 4.3% in 2003.

The Pew Hispanic Center periodically examines trends in the unauthorized immigrant population. State and local officials watch such trends carefully because state and local governments pay for the services provided to illegal immigrants, especially education, health care and public safety.

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