Jeffrey W. Toppel – Phoenix, Arizona
Sean G. Hanagan – White Plains, New York

Less than two years after the enactment of the Legal Arizona Workers Act (“LAWA”), Arizona Governor Jan Brewer has signed into law the Support Our Law Enforcement and Safe Neighborhoods Act (Senate Bill 1070). The Act requires law enforcement officials to attempt to determine the immigration status of any person that they believe to be an alien unlawfully present in the United States. The Governor’s decision has thrust Arizona into the spotlight of immigration reform debate.

The controversial statute has attracted both national and international attention since the April 23 signing and has led to daily protests at the Arizona State Capitol in downtown Phoenix. Public figures ranging from Los Angeles Catholic Cardinal Roger Mahony to the Reverend Al Sharpton and Mexican President Felipe Calderon have spoken in opposition. Despite this, polls suggest that 70 percent of Arizona voters favor the law.
Widespread Concerns Regarding Racial Profiling

The most controversial provision of Senate Bill 1070 requires law enforcement officials to make a reasonable attempt to determine the immigration status of any person that they come into contact if they believe the person may be an alien unlawfully present in the country. Specifically, the statute provides, “where reasonable suspicion exists that the person is an alien who is unlawfully present in the United States, a reasonable attempt shall when practicable, to determinate the immigration status of the person…”

Other controversial provisions in the statute include:

    * Prohibiting state, city or county officials from limiting or restricting “the enforcement of federal immigration laws to less than the full extent permitted by federal law.” Under the statute, any Arizona resident may sue a public official or agency that adopts or implements a policy that so limits such laws’ enforcement. The provision is intended to prevent “sanctuary cities” that that adopt policies viewed as protecting undocumented aliens.
    * Making it a crime to be an illegal immigrant present in Arizona by creating a state charge for “willful failure to complete or carry an alien-registration document.”
    * Making it a crime for a person to “conceal, harbor or shield or attempt to conceal, harbor or shield an alien from detection in any place in this state … if the person knows or recklessly disregards the fact that the alien has come to, has entered or remains in the United States in violation of the law.”
    * Allowing a peace officer, without a warrant, to arrest a person if the officer has probable cause to believe the person “to be arrested has committed any public offense that makes the person removable from the United States.”
    * Requiring a peace officer to remove and either immobilize or impound a vehicle if the officer determines that a person is “transporting or moving or attempting to transport or move” an alien in the furtherance of the illegal presence of an alien in the United States.

Provisions Impacting the Employment Relationship

Several provisions in the new statute will affect Arizona employers.

The statute makes it a crime for an occupant of a motor vehicle “that is stopped on the street, roadway or highway, to attempt to hire or hire and pick up passengers for work at a different location” if the vehicle blocks or impedes the normal flow of traffic. This is aimed at prohibiting hiring of day laborers who congregate at certain locations, such as home-improvement stores. This provision also makes it a crime for unlawful aliens to “apply for work, solicit work in a public place or perform work as an employee or independent contractor in this state.”

The Act amends the Legal Arizona Workers Act by adding a recordkeeping provision that requires employers to maintain E-Verify verifications for each employee hired after January 1, 2008 (LAWA’s effective date) for the duration of the employment or at least three years, whichever is longer. In addition, it adds a defense of entrapment for employers facing a claim that they either intentionally or knowingly hired an unauthorized alien.
Challenges to Senate Bill 1070 Expected

Many groups have stated that they are considering filing lawsuits to challenge the statute before it becomes effective 90 days after the close of the current legislative session (expected to end in early May). Civil rights groups have expressed concerns that the statute’s provision requiring law enforcement to check a person’s immigration status will lead to widespread abuse and “racial profiling” against members of Arizona’s Latino population.

Influential public officials at all levels also have expressed opposition to the statute and have indicated that a challenge to the statute is likely. In a speech made prior to the Act’s enactment, President Barack Obama called the statute “misguided” and said he has directed his administration to “closely monitor” the civil-rights implications of the statute. Secretary of Department of Homeland Security Janet Napolitano (the former governor of Arizona who signed LAWA into effect two years ago) also has expressed opposition to the statute. It is possible that the Department of Justice may seek to challenge the constitutionality of the statute on civil rights grounds.

At the local level, Phoenix Mayor Gordon has come out in strong opposition to the statute and has indicated that he will seek approval from the Phoenix City Council to file a lawsuit to challenge the statute. Moreover, Maricopa County Attorney Rick Romley, who would be tasked with enforcing many of the Act’s provisions, expressed concerns, on civil rights grounds, about the statute in his attempt to convince the Governor to veto the bill.

Any lawsuit challenging the statute would likely argue that Arizona is impermissibly seeking to regulate in the field of immigration, a field traditionally left to the federal government. Any lawsuit also would challenge the likely civil-rights implications resulting from the statute’s “reasonable suspicion” provision. Jackson Lewis will closely monitor and report legal developments relating to the Act.
Looking Ahead

While a challenge to Senate Bill 1070 is likely before the Act becomes effective, Arizona employers, nevertheless, should prepare to comply with the statute.

Employers in Arizona should consider:

    * Reviewing their compliance with the LAWA to ensure that they are using the E-Verify system to verify all new employees.
    * Reviewing and, if necessary, modifying their record-retention policies to ensure they will be complying with the Act’s new recordkeeping requirement (employers must maintain E-Verify verifications for the duration of an employee’s employment or at least three years, whichever is longer).
    * Reviewing their Form I-9 procedures to ensure full compliance with federal immigration law. Under LAWA, an employer that complies in good faith with the federal I-9 requirements is entitled to an affirmative defense.

After months of inactivity under LAWA, it has been reported that the Maricopa County Attorney’s Office (MCAO) resolved its first case under the statute against an employer who allegedly rehired an employee using fake identification after ICE (Immigration and Customs Enforcement) had determined the employee was an undocumented alien. MCAO may have initiated at least one other prosecution under LAWA. With a newly appointed Maricopa County Attorney taking office, it is not yet clear how aggressively the statute will be enforced in the Phoenix area.

Arizona businesses, particularly those in the hospitality industry, should prepare for the possibility of a boycott or other type of business disruption. Calls for a boycott of Arizona businesses have been widespread and have gained momentum. Democratic U.S. Representative Raul Grijalva of Arizona has called for a boycott of Arizona businesses, noting that a boycott brought about a change in state policy 20 years ago when Arizona refused to recognize Martin Luther King, Jr. Day as a state holiday.

Officials in San Francisco have proposed that the City do no business with companies in Arizona. Moreover, just hours after the Governor announced her decision to sign Senate Bill 1070, the American Immigration Lawyers Association decided to move its planning 2010 conference out of Arizona to protest what it described as the “harshest anti-immigration bill passed in the U.S. in more than a decade.” Other groups may follow suit. At least one labor union, the Services Employee International Union (SEIU), also seems poised to use the enactment of Senate Bill 1070 in its organizing efforts in Arizona. The full extent of the economic impact will not be known for some time.

Finally, the enactment of Senate Bill 1070 has increased calls for the federal government to enact comprehensive immigration reform. Two Senators — Charles E. Schumer (D-NY) and Lindsey O. Graham (R-SC) — have outlined their vision and framework for immigration reform. (See Senators Schumer and Graham Release Immigration Reform Framework.) The pace of activity on immigration reform likely will increase significantly. Attorneys in Jackson Lewis’ Global Immigration practice group will continue to monitor developments at the federal level.

Jackson Lewis attorneys are also available to answer questions about Senate Bill 1070, compliance with its provisions, auditing your Form I-9 compliance, and participation in E-Verify.