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Arizona Immigration Law Tough
on Employers
Penalties imposed by the Fair and Legal
Employment Act are the harshest of the laws
in any state
This article was updated
September 05, 2008
To address the growing problem of illegal
immigration, during the 2007 legislative
session the Arizona legislature and Governor
Napolitano placed strict new requirements
backed by harsh penalties – including a
“business death penalty” – on employers that
hire undocumented workers.
The Fair and Legal Employment Act (also
referred to as the Legal Arizona Workers
Act), found in
A.R.S. § 23-212, went into
effect January 1, 2008. The Act applies to
all employers that:
-
transact business in Arizona;
-
have a license, registration, charter,
authorization or certificate (including
partnership registrations and articles of
organization) issued by an Arizona agency;
or
-
have any employees who perform services in
Arizona.
The Act requires all employers to use the
federal government’s Employment Eligibility
Verification System (EEV), previously called
the Basic Pilot Program, to verify the work
authorization status of new employees hired
on or after January 1, 2008. While
participation in the EEV is voluntary as far
as Uncle Sam is concerned, it will be
mandatory in Arizona. The EEV is a free
service intended to allow employers to
confirm electronically the employment
eligibility of new hires, based on Social
Security numbers, alien registration
numbers, and I-94 numbers.
Complaint Process. Anyone –
employees, ex-employees, competitors, etc. –
can blow the whistle on a company or
organization suspected of violating the Act.
Investigation of every complaint by the
County Attorney or the Attorney General will
be mandatory, regardless of merit. (Filing a
frivolous complaint will be punishable as a
Class 3 misdemeanor.)
If a complaint is found not to be frivolous,
notifications will be sent to U.S.
Immigration and Customs Enforcement (ICE),
local law enforcement agencies, and the
applicable County Attorney. Prosecution will
receive expedited treatment in Superior
Court.
Violation Standards. Under the
Act, Arizona employers are prohibited from
“knowingly” or “intentionally” hiring an
unauthorized alien. An “unauthorized alien”
is an alien who does not have the legal
right under federal law to work in the U.S.,
as determined by the federal government.
Knowingly hiring an unauthorized
alien is defined by U.S. Code, Title 8, §
1324 as “recruiting or hiring for employment
an individual knowing that the person is an
unauthorized alien.” “Knowingly” means that
the employer either:
-
had actual knowledge or notice of facts
and circumstances that would lead a
reasonable person exercising reasonable
care to know, or
-
hired an alien without verifying his or
her employment eligibility, or had notice
of suspicious circumstances and failed to
investigate.
Intentionally hiring an unauthorized
alien occurs when, as stated in
A.R.S. § 13-105, “a person’s objective
is to cause that result or to engage in that
conduct.” Therefore, “intentionally” means
that the employer’s objective is to hire an
unauthorized alien. This standard carries
harsher punishment.
Penalties
The penalty structure begins with temporary
suspension of the employer’s business
license and ends, after repeated violations,
with putting the offending employer out of
business.
Knowingly hiring. Upon a first
violation for knowingly hiring an
unauthorized worker:
-
The court may suspend your business
license for up to 10 days.
-
You must sign a sworn affidavit stating
that you have terminated all unauthorized
workers.
-
You are subject to a three-year
probationary period, during which you must
file quarterly reports with the County
Attorney reporting new employees hired.
At this level, enforcement authorities have
some flexibility in meting out punishment
and may consider as mitigating and
aggravating factors the number of
unauthorized alien employees; prior
misconduct, if any; the harm caused by the
violation; good-faith efforts to comply;
duration of the violation; the role of the
company’s owners, directors, and officers;
and any other factors deemed relevant.
Intentionally hiring. The
consequences for intentionally hiring an
unauthorized worker get considerably
tougher. For a first violation:
-
The court shall suspend your business
license for at least 10 days;
-
You must sign a sworn affidavit stating
that you have terminated all unauthorized
workers.
-
You will be placed on five-year probation,
during which you must file quarterly
reports with the County Attorney for each
new employee hired.
A second instance of knowingly or
intentionally hiring an unauthorized alien
during the three-year or five-year probation
period triggers the “business death
penalty,” under which the court shall
permanently revoke all licenses necessary to
operate a business in Arizona.
EEV Controversy
As was stated earlier, the Act requires
every Arizona employer to enroll in the
federal EEV program and use it for every new
hire after January 1, 2008. The Act also
provides that proper use of EEV creates a
presumption that an employer hired its alien
employee in good faith, without knowledge
that the worker was unauthorized.
Unfortunately, it is widely held that EEV is
unreliable, riddled with erroneous records,
susceptible to identity fraud, sometimes
impossibly slow, and generally not up to
meeting the demands that will be placed on
it by recent federal regulations and state
laws like Arizona’s.
In addition, as part of the EEV
on-line enrollment process, employers
give federal immigration officials
permission to occasionally enter their
premises, interview employees, and review
employment files.
Prepare Now
Use this opportunity to review your hiring
procedures to ensure that you are in
compliance with current federal Form I-9
requirements under the federal Immigration
Reform and Control Act.
Also, you should consider conducting a
self-audit or pre-audit of Forms I-9 for
existing employees, either internally or by
using an employment or immigration attorney
or experienced human resources professional.
Finally, be mindful that the federal
Immigration Reform and Control Act also
prohibits employment discrimination on the
basis of national origin or race. Employers
should have written policies that prevent
the hiring of unauthorized workers and, at
the same time, ensure that in your hiring
decisions you do not illegally discriminate.
Stay abreast of developments concerning the
Arizona Act and comply with the law. With
advance preparation, disruption to your
company can be greatly reduced.
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