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Arizona Supreme Court May Review AZ’s Employer Sanctions Law

By: John Flynn on November 3, 2009

Arizona’s Legal Arizona Workers Act has been in place for 2 years. This state law requires Arizona employers to use the federal e-verify system/database to confirm a prospective employee’s work status before hiring after January 1, 2008. The 2 year old law has teeth – the Arizona AG and the County Attorneys are authorized to prosecute violations of the law in a civil lawsuit. If an employer is determined to have intentionally or knowingly employed an unauthorized immigrant, the employer’s business license may be suspended for up to 10 days and the employer may be placed on probation. A second offense can result in the employer’s business license being revoked — forcing the employer out of business. There have been two different lawsuits brought, attacking the constitutionality and enforceability of this state law. As those lawsuits worked their way through the system, Arizona’s employers hurriedly signed up and utilized the previously voluntary federal e-verify program since the good faith use of the program protected the employers even if the prosecutors later determined the employee was not authorized to work in the US. Those prior cases did not result in the overturning of the Act.

Now the Arizona Supreme Court has another request before it to review the Act being pushed by a host of business and immigrant support organizations. Although it hasn’t accepted the appeal, the Arizona Supreme Court has requested the Obama administration’s Solicitor General to submit a brief outlining the federal government’s views on the Act. Although the federal government isn’t a party to this current appeal, the Supreme Court requested the administration provide its input before the appellate court decides whether to accept the appeal and hear the case since immigration laws and enforcement have typically been a matter solely within the authority and purview of the federal government. The Arizona Solicitor General has already submitted a brief which asserts the Arizona Supreme Court shouldn’t accept and hear the appeal. The state asserts the federal Immigration Reform and Control Act of 1986 expressly authorized states to impose sanctions through “licensing and similar laws”.

It will be interesting to see if, and what the administration files in response to the Arizona Supreme Court’s request. The Arizona law was signed into effect by then Arizona governor, Janet Napolitano, the current Secretary of the Department of Homeland Security. Also, during the campaign, then-candidate Obama repeatedly asserted that the enactment of various separate state immigration laws “underscored” the importance of the federal government establishing “comprehensive immigration reform”. Campaigning is one thing — the realities of the office are altogether another. Since taking office, President Obama has spent his time on a host of domestic policy issues and is now saddled with the healthcare reform debate. Federal immigration reform hasn’t surfaced as a priority, although the talking heads expect the issue to arrive front and center in 2010.

The fact the Arizona Supreme Court has requested the Obama administration weigh-in on this issue as it decides whether to accept the pending appeal certainly seems to indicate Arizona’s highest state court is poised to take a hard look at the law. Since a host of states have copied Arizona’s law to enact their own state immigration enforcement legislation, it seems likely the federal government will take up this issue in the coming year. It would not be surprising to see the Arizona Supreme Court accept the appeal and render a decision on the enforceability of Arizona’s law before any new federal legislation is passed. Given the political make-up and geographic location of Arizona, don’t be shocked if Arizona took another run at instituting Arizona legislation addressing immigration enforcement if the current Arizona law is struck down as unconstitutional. Any such state effort might run in to a road block if President Obama picks up the mantle of federal immigration reform in 2010. Of course, campaigning is one thing — enacting comprehensive federal legislative reform is entirely another topic altogether.

Whether Arizona’s employers are seeking to comply with the current Arizona law or understand the anticipated federal developments in 2010, the attorneys at Dioguardi Flynn LLP can assist to best ensure Arizona’s employers don’t find themselves with Sheriff Joe, County Attorney Thomas or their brethren knocking on the door.

Tags: Employment Law, John Flynn

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