In a 5-to-3 decision, the U.S. Supreme Court has ruled that states can punish employers who violate mandatory E-Verify laws by upholding a 2007 Arizona law that requires employers to enroll in the voluntary federal E-Verify program which checks the legal status of workers by comparing information on their Employment Eligibility Verification Form I-9s against Department of Homeland Security (DHS) and Social Security Administration (SSA) databases, according to a report on the National Journal website.
In the majority opinion for the Court, Chief Justice John Roberts wrote that Arizona enforces its E-Verify employment verification requirement through licensing laws:
“Arizona’s procedures simply implement the sanctions that Congress expressly allowed the States to pursue through licensing laws. Given that Congress specifically preserved such authority for the States, it stands to reason that Congress did not intend to prevent the States from using appropriate tools to exercise that authority… We hold that Arizona’s licensing law falls well within the confines of the authority Congress chose to leave to the states and therefore is not expressly preempted.”
The U.S. Chamber of Commerce had sued the state of Arizona over a 2007 law that suspends licenses of businesses if they fail to use E-Verify to check the eligibility of all new hires, arguing that immigration enforcement is exclusively the purview of the federal government. Arizona was the first state in the country to pass a mandatory law requiring mandatory use of the E-Verify electronic employment eligibility verification system by employers. Mississippi and South Carolina have also passed mandatory E-Verify laws, while many other states have passed laws requiring E-Verify use by some businesses.
The Immigration Reform and Control Act (IRCA) of 1986 makes it “unlawful for a person or other entity… to hire, or to recruit or refer for a fee, for employment in the United States an alien knowing the alien is an unauthorized alien.” Employers that violate that prohibition may be subjected to federal civil and criminal sanctions. IRCA also requires employers to take steps to verify an employee’s eligibility for employment. In an attempt to improve that employment eligibility verification process, Congress created E-Verify, an internet-based system employers can use to check the work authorization status of employees.
A Designated E-Verify Employer Agent such as Employment Screening Resources (ESR) – a nationwide background screening provider accredited by The National Association of Professional Background Screeners (NAPBS®) – can help employers comply with E-Verify requirements. To learn more about E-Verify services from Employment Screening Resources, visit https://www.esrcheck.com/formi9.php.
The full Supreme Court ruling on the case is available at: http://www.supremecourt.gov/opinions/10pdf/09-115.pdf.
About Employment Screening Resources (ESR): Founded in 1997 in the San Francisco Bay area with a mission to help employers and employees maintain safe workplaces, Employment Screening Resources (ESR) is accredited by The National Association of Professional Background Screeners (NAPBS®) and wrote the book on background checks with ‘The Safe Hiring Manual’ by founder and President Lester Rosen. For more information about ESR, visit https://www.esrcheck.com or email ESR News Editor Thomas Ahearn at [email protected].