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.

Question: Our executive secretary writes a blog called “Take this job and …” She uses a pseudonym, but anyone who knows our company would surely recognize her examples and anecdotes in her workday gripes. Nothing’s derogatory or hostile, but it’s not good for image. Can this person be reprimanded or asked to resign?

John Flynn of Dioguardi Flynn LLP answers:
In Arizona, employment is “at-will” and may be terminated by either the employee or employer for any reason, provided the reason doesn’t violate the law. There appears to be only conjecture that this employee is undertaking the blogging activity. Any employer that learns an employee is blogging negatively about its operations, management or personnel (as opposed to “assuming such activities), must proceed cautiously before terminating or disciplining the employee. The employer needs to determine if the employee is engaging in National Labor Relations Act “protected activity.”

Question: I am a company owner. My employee left work after working his scheduled shift, but he abandoned his job and never returned. The employee also left behind personal property. What are my responsibilities regarding the employee’s last paycheck and the personal property he left behind?

John Flynn of Dioguardi Flynn LLP answers:
An Arizona employer must pay wages earned to the employee up to and through the termination date no later than the next regular pay period, unless the wages are undetermined at the time of termination, such as bonuses or commissions. I recommend you send a letter with the final paycheck to the former employee (preferably via certified mail) confirming the job abandonment, the wages paid, and include your company’s normal termination documentation. That letter should also confirm the personal property left behind and instruct the former employee to contact an identified representative to arrange for retrieval before a reasonable date certain, after which the employer will dispose of the property. If the property hasn’t been retrieved or a retrieval date/time scheduled, the employer doesn’t have an obligation to indefinitely store the property or incur any shipping expense. Finally, always make certain you have a solid paper trail in your file.

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Question: My husband and I both applied for positions with a company for which we’d worked more than seven years ago. My husband was offered a position, but it was rescinded when his old employee file was found to contain a “not eligible for rehire” statement. I’ve applied for three different positions and not heard anything. I’ve called the HR department several times to request an appointment to view my old file and have not heard from them. Is it illegal for them to refuse us access to our old employment files? The company has been sold (twice!) since we worked there, too, so should that “ineligible” note still hold?

John Flynn of Dioguardi Flynn LLP answers:
In the context of a private employer in Arizona, an employee has no stand-alone legal right to review his or her personnel file, as that documentation is considered the employer’s property. However, certain contracts of employment will, at times, provide a current or former employee with a right to inspect and copy personnel-file information.

It is important to remember that Arizona is an “at-will” employment jurisdiction. As such, an employer or employee may terminate an employment relationship at any time provided that termination decision is not undertaken in violation of applicable state law.

A corollary to this point is that a former employee has no right to be considered for re-hire by the former employer. Of course, if the “not eligible for rehire” decision was actually based upon a discriminatory reason – for example, the employer doesn’t want to re-employ you because you are older than 40 or Native American, respectively violating the Age Discrimination in Employment Act and Title VII of the Civil Rights Act and its Arizona counterpart – then the decision would be subject to attack.

However, the fact that the prior employer was sold one or more times does not impact the propriety of an “ineligible for rehire” decision.

Arizona Republic column – December 9, 2007

Question: I was, until a month ago, working at a small trucking company where the owner treated everyone as an independent contractor to avoid employment taxes. I worked in the owner’s office, using his equipment for duties during daytime hours. I also drove out of state occasionally, as I was the relief driver. The owner had control of all aspects of the business. There were no benefits, and the self-employment penalty tax I had to pay certainly gouged into my earnings. Could the Department of Labor or the IRS reclassify me as an employee? Would I be able to recover any taxes I had to pay?

John Flynn of Dioguardi Flynn LLP answers:
If an employer wrongfully classifies an employee as an independent contractor and does not withhold income taxes, Social Security, and Medicare from compensation, the employee may request a determination of status filing IRS Form SS-8. The IRS defines workers as independent contractors, common-law employees, statutory employees or statutory non-employees. You can See IRS Publication 15-A for information, but the largest category is common-law employee. The IRS has a 20-factor test to determine whether a worker is a common-law employee. Here, the fact that you worked in the owner’s office, used his equipment and were subject to his control of the business suggests you may have been a common-law employee. Therefore, you may want to consult a tax professional about filing a Form SS-8 and amend your tax returns accordingly.

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