Handling The New Legal Arizona Workers Act
The basis of the problem to us as a nation and to us as business owners
The Legal Arizona Workers Act, or what is commonly referred to as “the sanctions law” was drawn up in an effort to keep businesses in Arizona from knowingly or intentionally hiring or employing illegal aliens, thus encouraging more illegal immigration to Arizona. The law has come about because of the failure, or at least the perceived failure, of the federal government to protect its citizens from the intrusion into the job market by those who have no legal right to hold jobs, thus displacing American citizens and legal residents from employment. Nowhere has this been more of an issue than in the border states of California, Arizona, New Mexico and Texas. Arizona is credited with being the gateway for illegal immigration into the United States. Nationally, there are estimated to be over 12 Million illegal aliens of all nationalities. More than 5% of all illegal aliens reside in the relatively rural and desert state of Arizona. Controversial and contested as the act has become, as of January 1, 2008, the act has become Arizona state law and Arizonans have the responsibility to comply.
Arizona has taken the lead in what has become a very emotional national issue
Democratic Governor of Arizona Janet Napolitano has stated that the Legal Arizona Workers Act is “the most aggressive action in the country against employers who knowingly or intentionally hire undocumented workers.” Governor Napolitano has recommended that national legislation similar to Arizona’s law be adopted and she has sent her comments to the United States House of Representatives Speaker Nancy Pelosi and United States Senate Majority Leader Harry Reid.
What is the purpose of the law and who will enforce it?
There are two purposes to the new law, although only one part gets much press. The first part, the prohibition of any business of knowingly or intentionally hiring illegal aliens is punishable by suspension and subsequent revocation of business licenses (which is under the jurisdiction of the states).
The second part upgrades the crime of identity theft for the purposes of seeking employment to aggravated identity theft, and makes it a felony, punishable by imprisonment. The Arizona law, because of the restriction on employment, has already undergone a federal lawsuit challenging its constitutionality, but the law was upheld. Federal District Judge Neil V. Wake stated that the legal action reviewed was premature because there was no evidence that anybody had been harmed (since the law was not then in effect). He also noted that the plaintiffs were suing the wrong people (the state and the attorney general, which only has oversight and investigative authority).
Under the law, the county attorneys are responsible for enforcement and prosecution. One would expect that the suit would be filed again in the immediate future. It may seem that enforcing a law that tries to keep illegal aliens from taking jobs away from citizens and legal resident aliens couldn’t be challenged constitutionally; however, all people within our borders are under the jurisdiction of the law and the law is based on the Constitution. The Constitution states that people cannot be deprived of life, liberty, or the pursuit of happiness without due process of law. The basis of any lawsuit would probably have that issue at its core.
What about Arizona’s low unemployment? Where will new workers come from?
One of the big questions talked about in the media is where will new employees come from when our unemployment figures are so low? A check of the statistics would tell us that Arizona’s unemployment numbers are not all that low. According to the United States Department of Labor, Arizona ended 2007 just about in the middle, nationally, at 4.1%. The lowest is 2.7 (Idaho) and the highest is 7.4% (Michigan). Arizona ranks at 19, just ahead of New Jersey and Pennsylvania. In addition, for almost two decades, Arizona’s growth against unemployment has come largely from part-time jobs without benefits. These jobs make up two-thirds of Arizona’s employed. That is not a strong economic situation for working class families.
What does it mean that the new law is the death penalty for business?
Governor Napolitano has stated that the Legal Arizona Workers Act is the death penalty for Arizona business. In the context of her remark, it is clear that she meant that the law enacts the power to suspend and subsequently revoke a business license to that business that knowingly hire (employ someone even though he’s an illegal alien) or intentionally (employ someone because he is an illegal alien) more than one time. It has been reported in the news that there are already cases where companies have decided not to expand in Arizona or have outsourced activity to other states, even to Mexico itself, to avoid making a mistake in hiring the wrong person in Arizona and thus face prosecution. Moreover, the new law already had its intended effect before the first of the year as companies began laying off illegals before the first of the year to avoid prosecution under the law when it takes affect. In many cases, the company is wrong to do that under the law.
How can my company take on the added burden of mandatory verification?
Like it or not, the Legal Arizona Workers Act is here to stay, at least for the time being. Finding ways to comply is placing a new burden on Arizona employers, as they are required to verify employment eligibility against a national database. The data service, known as E-Verify, is without cost, but not without confusion. According to the website:
“E-Verify (formerly known as the Basic Pilot/Employment Eligibility Verification Program) is an Internet based system operated by the Department of Homeland Security (DHS) in partnership with the Social Security Administration (SSA) that allows participating employers to electronically verify the employment eligibility of their newly hired employees.”
Before using it for the first time, users must first register and then certify that a responsible employee of the company has completed a tutorial. If you are outsourcing your HR, your HR partner should be handling this for you.
To begin the registration process for E-Verify, visit the website at:
https://www.vis-dhs.com/EmployerRegistration/StartPage.aspx?JS=YES.
When do I have to carry out the verification process under the new law?
Verification must be done on each new hire within three days of anticipated employment. E-Verify is not to be used as a screening tool or to check existing employees’ eligibility. One potential difficulty in complying with the new law is that this service is slated for discontinuation in November 2008, unless the Department of Homeland Security and the Social Security Administration take steps to continue the service. Finding ways to comply is an important issue for Arizona businesses who seek help in the huge new task of verifying each new employment candidate.
For any company, regardless of its size, taking on the task internally is a daunting prospect. One way to handle it is to let a professional HR outsourcing firm, such as CBR, handle the process for you. Such companies are already experienced in the process and can take the load off your company’s shoulders.
There are pluses and minuses both to doing it yourself or having a professional HR outsourcing firm handle it for you. Part of your decision will also be gauged by the desired degree of personal involvement you desire. Many things remain unclear as to how the law will be administered, how much it will cost and so forth. One thing is clear, though: you will be required to comply immediately. Interestingly, the one overriding debate that is yet to be heard is whether a person who has no legal right to employment in the United States is protected by the constitution to seek employment without interference.
How can I find more information and keep up-to-date on the issues?
CBR has constructed a website, as a public service, where anyone can check for updates, challenges and news about the new law and employer responsibilities. For more information visit that website at www.azimmigrationcompliance.com.
Whether business owners and employers agree with the intent and validity of the Legal Arizona Workers Act, it is their responsibility to comply with it. In the absence of federal support and protection, Arizona, as the pathway for the vast majority of illegal aliens crossing our borders, has taken on behalf of the people what is felt is a necessary step to protect jobs and economic stability. Exactly how difficult it is to comply and how costly it will become is yet to be seen; however, there are those human resource professionals around, such as CBR, who have the expertise and can help you weed through the necessary steps in compliance.
For more information about how we can help you with your Human Resources and the new immigration laws, call us at 888-700-8512, request a proposal or contact us.
