Federal Judge Issues Ruling Upholding Mandatory Usage of E-Verify by Alabama Employers

Ruling on the recently-enacted Alabama immigration law House Bill 56 (H.B. 56), Chief Judge Sharon Blackburn of the United States District Court for the Northern District of Alabama has issued a 115 page opinion upholding the order that Alabama employers must confirm the work authorized status of all new workers using the federal E-Verify employment eligibility verification system beginning April 1, 2012 or face penalties for hiring unauthorized aliens. In addition, businesses in Alabama must enroll in E-Verify by January 1, 2012 and attest by sworn affidavit to not knowingly employ, hire, or continue to employ unauthorized aliens to receive government contracts and grants from the State.

While the opinion shows that several sections of H.B. 56 may be unconstitutional, Judge Blackburn upheld Section 15 of the law that requires all employers in Alabama to enroll in the federal E-Verify program and prohibits from hiring illegal immigrants, a ruling similar to a 5-to-3 U.S. Supreme Court decision in May 2011 that upheld a nearly identical portion of Arizona’s immigration law S.B. 1070 allowing states to punish employers violating mandatory E-Verify laws. 

H.B. 56 was signed into law by Alabama Governor Robert Bentley and requires employers to use the now-voluntary federal E-Verify system to ensure that newly hired employees are legally eligible to work in the United States and would also authorize the revocation of business licenses for companies that employ illegal workers. All Alabama employers, both public and private, must begin using E-Verify when hiring new employees no later than April 2012.

Bill Text for Alabama H.B. 56, Section 15.

(a) No business entity, employer, or public employer shall knowingly employ, hire for employment, or continue to employ an unauthorized alien to perform work within the State of Alabama. Knowingly employ, hire for employment, or continue to employ an unauthorized alien means the actions described in 8 U.S.C. 1324a.

(b) Effective April 1, 2012, every business entity or employer in this state shall enroll in E-Verify and thereafter, according to the federal statutes and regulations governing E-Verify, shall verify the employment eligibility of the employee through E-Verify. A business entity or employer that uses E-Verify to verify the work authorization of an employee shall not be deemed to have violated this section with respect to the employment of that employee.

(c) On a finding of a first violation by a court of competent jurisdiction that a business entity or employer knowingly violated subsection (a), the court shall do all of the following: (1) Order the business entity or employer to terminate the employment of every unauthorized alien. (2) Subject the business entity or employer to a three-year probationary period throughout the state. During the probationary period, the business entity or employer shall file quarterly reports with the local district attorney of each new employee who is hired by the business entity or employer in the state. (3) Order the business entity or employer to file a signed, sworn affidavit with the local district attorney within three days after the order is issued by the court stating that the business entity or employer has terminated the employment of every unauthorized alien and the business entity or employer will not knowingly or intentionally employ an unauthorized alien in this state. (4) Direct the applicable state, county, or municipal governing bodies to suspend the business licenses and permits, if such exist, of the business entity or employer for a period not to exceed 10 business days specific to the business location where the unauthorized alien performed work.

(d)(1) Before a business license or permit that has been suspended under subsection (c) is reinstated, a legal representative of the business entity or employer shall submit to the court a signed, sworn affidavit stating that the business entity or employer is in compliance with the provisions of this act and a copy of the Memorandum of Understanding issued to the business entity or employer at the time of enrollment in E-Verify. (2) The suspension of a business license or permit under subsection (c) shall terminate one business day after a legal representative of the business entity or employer submits a signed, sworn affidavit stating that the business entity or employer is in compliance with the provisions of this act to the court.

(e) For a second violation of subsection (a) by a business entity or employer, the court shall direct the applicable state, county, or municipal governing body to permanently revoke all business licenses and permits, if such exist, held by the business entity or employer specific to the business location where the unauthorized alien performed work. On receipt of the order, and notwithstanding any other law, the appropriate agencies shall immediately revoke the licenses and permits held by the business entity or employer.

(f) For a subsequent violation of subsection (a), the court shall direct the applicable governing bodies to forever suspend the business licenses and permits, if such exist, of the business entity or employer throughout the state.

(g) This section shall not be construed to deny any procedural mechanisms or legal defenses included in the E-Verify program or any other federal work authorization program. A person or entity that establishes that it has complied in good faith with the requirements of 8 U.S.C. 1324a(b) establishes an affirmative defense that the business entity or employer did not knowingly hire or employ an unauthorized alien.

(h) In proceedings of the court, the determination of whether an employee is an unauthorized alien shall be made by the federal government, pursuant to 8 U.S.C. 1373(c). The court shall consider only the federal government’s determination when deciding whether an employee is an unauthorized alien. The court may take judicial notice of any verification of an individual’s immigration status previously provided by the federal government and may request the federal government to provide further automated or testimonial verification.

(i) Any business entity or employer that terminates an employee to comply with this section shall not be liable for any claims made against the business entity or employer by the terminated employee, provided that such termination is made without regard to the race, ethnicity, or national origin of the employee and that such termination is consistent with the anti-discrimination laws of this state and of the United States.

(j) If any agency of the state or any political subdivision thereof fails to suspend the business licenses or permits, if such exist, as a result of a violation of this section, the agency shall be deemed to have violated subsection (a) of Section 5 and shall be subject to the penalties thereunder.

(k) In addition to the district attorneys of this state, the Attorney General shall also have authority to bring a civil complaint in any court of competent jurisdiction to enforce the requirements of this section. (1) Any resident of this state may petition the Attorney General to bring an enforcement action against a specific business entity or employer by means of a written, signed petition. A valid petition shall include an allegation that describes the alleged violator or violators, as well as the action constituting the violation, and the date and location where the action occurred. (2) A petition that alleges a violation on the basis of national origin, ethnicity, or race shall be deemed invalid and shall not be acted upon. (3) The Attorney General shall respond to any petition under this subdivision within 60 days of receiving the petition, either by filing a civil complaint in a court of competent jurisdiction or by informing the petitioner in writing that the Attorney General has determined that filing a civil complaint is not warranted.

(l) This section does not apply to the relationship between a party and the employees of an independent contractor performing work for the party and does not apply to casual domestic labor performed within a household.

(m) It is an affirmative defense to a violation of subsection (a) of this section that a business entity or employer was entrapped. (1) To claim entrapment, the business entity or employer must admit by testimony or other evidence the substantial elements of the violation. (2) A business entity or employer who asserts an entrapment defense has the burden of proving by clear and convincing evidence the following: a. The idea of committing the violation started with law enforcement officers or their agents rather than with the business entity or employer. b. The law enforcement officers or their agents urged and induced the business entity or employer to commit the violation. c. The business entity or employer was not already predisposed to commit the violation before the law enforcement officers or their agents urged and induced the employer to commit the violation.

(n) In addition to actions taken by the state or political subdivisions thereof, the Attorney General or the district attorney of the relevant county may bring an action to enforce the requirements of this section in any county district court of this state wherein the business entity or employer does business.

(o) The terms of this section shall be interpreted consistently with 8 U.S.C. 1324a and any applicable federal rules and regulations.

The full text of bill H.B. 56 is available at: http://www.openbama.org/index.php/bill/fulltext/3154.

The 115 page ruling for UNITED STATES OF AMERICA vs. STATE OF ALABAMA; GOVERNOR ROBERT J. BENTLEY is available at: http://www.cbs42.com/media/lib/124/5/d/1/5d1bd243-f883-4d25-9078-aa4f52da1cdd/Immigration_Ruling.pdf.

While federal law makes E-Verify voluntary for most businesses, Alabama is one of five states – along with Arizona, Georgia, South Carolina, and Tennessee – to enact laws mandating the use of E-verify, a free web-based system operated by the U.S. government that allows employers to verify the work authorization of newly hired employees in the United States by checking information on the Employment Eligibility Verification Form I-9 with Department of Homeland Security (DHS) and the Social Security Administration (SSA) databases.

Although these rulings are not yet final, employers in Alabama who violate the E-Verify provisions of H.B. 53 could potentially face costly fines and put their businesses at risk. Currently, federal contractors and subcontractors in all states must use E-Verify and many U.S. states have additional laws regarding E-Verify use by employers. A current E-Verify Legislation Map is available at http://www.trackercorp.com/everify-legislation-map.php.

Employers may choose to have a Designated E-Verify Employer Agent assist them in maintaining compliance with the E-Verify process. Employment Screening Resources (ESR) – a nationwide background check company accredited by the National Association of Professional Background Screeners (NAPBS) – is a Designated E-Verify Employer Agent that can help virtually eliminate I-9 form errors, improve the accuracy of their reporting, protect jobs for authorized workers, and help maintain a legal workforce. To learn more about ESR’s E-Verify services, visit http://www.esrcheck.com/formi9.php.

About Employment Screening Resources (ESR):
Employment Screening Resources (ESR) literally wrote the book on background screening with “The Safe Hiring Manual” by ESR founder and CEO Lester Rosen. ESR streamlines the screening process and reduces administrative overhead though its proprietary technology solutions.  ESR is accredited by The National Association of Professional Background Screeners (NAPBS®), a distinction held by less than two percent of all screening firms. This important recognition was achieved by successfully passing a third party audit demonstrating compliance with the NAPBS Background Screening Agency Accreditation Program. By choosing an accredited screening firm like ESR, employers know they have selected an agency that meets the highest industry standards. For more information about ESR, visit http://www.ESRcheck.com.

Sources:
http://www.openbama.org/index.php/bill/fulltext/3154.
http://www.cbs42.com/media/lib/124/5/d/1/5d1bd243-f883-4d25-9078-aa4f52da1cdd/Immigration_Ruling.pdf.