Employment Law Report

Supreme Court Upholds Arizona Law Which Penalizes Employers That Hire Illegal Aliens

By Glen M. Krebs

On May 26, 2011, the U.S.Supreme Court in Chamber of Commerce of the United States of America v. Whiting, 563 U.S. ____ (2011) upheld the Legal Arizona Workers Act.  This case does not involve the (in)famous SB 1070 Arizona law which requires police to check the immigration status of individuals in certain circumstances (several provisions of SB 1070 have been struck down by the 9th Circuit Court of Appeals and are on appeal to the Supreme Court).

 In Whiting the Court acknowledged that states can impose sanctions through licensing and similar laws on those who employ unauthorized aliens.  For example, theArizona law instructs courts to suspend or revoke the business licenses of in-state employers that employ unauthorized aliens.  The Court relied on the federal Immigration Reform and Control Act language which specifically allows states to impose sanctions through licensing and similar laws.

 The Supreme Court also concluded thatArizona’s E-Verify mandate is not preempted by federal law.  The Court determined that the IIRIRA provision setting up E-Verify does not circumscribe state action.  Therefore,Arizona’s requirement that all employers participate in E-Verify was upheld.  The state law requires that an employer, after hiring an employee, verify the employment of the employee through E-Verify.  Federal laws do not require use of the E-Verify system unless you are a sub-contractor of the federal government.  

 According to the Supreme Court, the following states have laws that provide for suspension or revocation of business licenses as a sanction for employing unauthorized aliens:Colorado,Mississippi,Missouri,Pennsylvania,South Carolina,Tennessee,Virginia, andWest Virginia. The states ofMississippi,South Carolina, andVirginiaalso require employers to use E-Verify or other method of verification.

 In addition,Georgiahas recently enacted the Illegal Immigration Reform and Enforcement Act of 2011, which among other things requires employers to use E-Verify as a condition of issuance and renewal of business licenses.

 Other states may attempt to pass similar restrictions on employers.  Therefore, employers MUST be aware of state laws impacting their hiring practices and not just the federal laws. 

 For questions regarding E-Verify or other immigration laws in states where your company is operating, contactGlenKrebsat 859-288-7409 or gkrebs@wyattfirm.com.

Glen M. Krebs
Glen Krebs is a member of the Firm’s Labor & Employment Service Team.  He concentrates his practice in international and immigration law. Read More