Unwelcome news for dairy producers, the decision will have a significant impact on immigration, particularly for employers who either knowingly or unknowingly employ undocumented workers. And Arizona’s law is certain to spawn copy-cast legislation in other states.
On May 26, 2011, the U.S. Supreme Court decided the constitutionality of the Legal Arizona Workers Act in Chamber of Commerce v. Whiting.
This is the “other” Arizona law designed to deal with illegal immigration, which is less controversial and has received far less media attention than the provision that has become commonly known as “Arizona SB 1070.”
Whiting is unlikely to have much of an impact on how the Court will ultimately rule on SB 1070, which has generated international controversy. Nonetheless, Whiting will have a significant impact on immigration, particularly as it relates to employers who either knowingly or unknowingly employ undocumented workers.
Under federal law, it is illegal for states to regulate immigration by imposing civil or criminal penalties for the employment of unauthorized workers. However, Congress made an exception and expressly permitted the states to impose sanctions through “licensing and similar laws.” In Whiting, the Court found that the Legal Arizona Workers Act falls squarely into the licensing exception.
Immediately, Whiting will only impact employers in Arizona and the eight other states that have similar laws on the books: Colorado, Mississippi, Missouri, Pennsylvania, South Carolina, Tennessee, Virginia and West Virginia. In the future, Whiting is certain to spawn copycat legislation in other states.
Understanding the Legal Arizona Workers Act
In order for dairy producers to understand the immediate or future impact on their business, it is critical to understand the fundamentals of the Legal Arizona Workers Act.
Under the Arizona law, an individual can file a complaint alleging that an employer has hired an unauthorized worker, and the attorney general or county attorney must then verify the employee’s work authorization through the federal government. The law specifically prohibits state, county and local officials from attempting “to independently make a final determination” on work authorization. If the inquiry reveals that the worker is unauthorized, the attorney general or county attorney must notify Immigration and Customs Enforcement and local law enforcement.
The state also must bring an action against the employer. Good-faith compliance with the I-9 process provides the employer with an affirmative defense. If the state determines that there has been a knowing or intentional violation, the employer is ordered to fire all unauthorized workers and all licenses can be temporarily suspended. A second violation results in permanent revocation of all licenses.
Finally, the law requires all Arizona employers to utilize E-Verify for their workers. E-Verify is the federal electronic system to verify employment authorization that was created in 1996. When it was created, Congress specifically mandated that the program was voluntary. In Whiting, the Court rejected the argument that, by requiring that all employers utilize E-Verify, Arizona was undermining Congress’ intent that the program be voluntary.
Unwelcome News for Dairy Producers
For dairy producers already struggling to maintain a reliable workforce, the Whiting decision is unwelcome news. It will have an immediate impact in the states that already have laws regulating unauthorized workers through licensing. Similar laws will likely be enacted in others states and the mandated use of E-Verify will spread.
Producers in the nine affected states should familiarize themselves with the specific provisions of their state law and how it might impact their business. Producers elsewhere should be vocal with state legislators about the negative impact that the passage of such a law will have on business. In the end, all producers should continue to pressure their federal representatives to resolve the problem in the right manner and place: in Washington, D.C., with federal immigration reform.
Erich C. Straub is an immigration lawyer who practices in Wisconsin and is listed in The Best Lawyers in America, SuperLawyers, and U.S. News and World Report’s Best Law Firms. Mr. Straub has spoken to audiences throughout the U.S. on immigration, and frequently advises Wisconsin Dairy Farmers on the topic. He has traveled Washington DC to meet with elected officials regarding immigration reform, and in 2008, the Milwaukee Business Journal described him as a “national leader on the federal immigration issue.” Contact him at firstname.lastname@example.org.