Arizonas Immigration Sanctions Law Affirmed

By James Denis

Nov. 5, 2008

The Legal Arizona Workers Act, a state law that went into effect January 1, 2007, required Arizona employers to use the federally operated E-Verify employment verification system, a database for checking work eligibility and Social Security numbers, to confirm their employees’ work authorization, and penalized employers for hiring illegal immigrants by revoking their business licenses. The use of E-Verify is voluntary under current federal immigration law, but became mandatory under the Arizona law.

    A coalition of business and immigration rights groups filed suit in the Phoenix-based U.S. District Court for the District of Arizona, alleging that the act was pre-empted by federal immigration laws and violated due process by denying employers the opportunity to challenge any determinations of the work authorization status of employees before sanctions were imposed. After the district court rejected the claims and upheld the act, the plaintiffs appealed.

    The U.S. Court of Appeals for the 9th Circuit, based in San Francisco, upheld the district court’s determination that Arizona’s law is a “licensing law” as permitted under a savings clause in the federal immigration law, and thus not pre-empted by federal immigration law. It also held that due process rights were not violated because “an employer’s opportunity to present evidence at a hearing in a superior court, in order to rebut the presumption of the employee’s unauthorized status, provides the employer a meaningful opportunity to be heard before sanctions are imposed.”

    The 9th Circuit also observed that, with respect to the Legal Arizona Workers Act, “other challenges to the Act as applied in any particular instance or manner will not be controlled by our decision.” Chicanos por la Causa Inc. v. Napolitano, 9th Cir., No. 07-17272 (9/17/08).

    Impact: Employers should monitor state and local regulations as they impose legal obligations with regard to obligations to confirm the work status of applicants and employees.

Workforce Management, October 20, 2008, p. 9Subscribe Now!

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