Overview

Reading, watching and listening to the news media concerning Arizona’s new immigration law (Senate Bill1070) will leave a conscientious business person bewildered. The Arizona State Legislature has determined the influx of illegal immigrants into Arizona must be dramatically reduced because costs to the State attributable to the excessive number of illegal residents cannot be accommodated by the State’s available income. Unfortunately, understanding border security is not widespread as it is often designed to keep citizens within a country; security to keep non-citizens out is a very complicating wrinkle. Countries that do not want non-citizens to enter have severe sanctions should a person enter the country without governmental authorization, examples being North Korea and Iran.

A secure border between Arizona and Mexico currently is not possible. To police the Arizona border with Mexico is virtually impossible, certainly impracticable. The Border Patrol has success in apprehending a small percentage of illegal immigrants, reducing the numbers who come to the U.S. for economic reasons. However, border smuggling of human contraband, as well as drugs, has increased. Violence and kidnappings and other evidence of the Mexican narco-state are increasing in Arizona. The question is what impact this new law may have on Arizona’s employers. This article does not address I.C.E. and federal law and the consequences of improper documented workers.

Arizona’s Economic Approach to Reducing Unlawful Immigration

While Arizona has enacted SB 1070 to make the state a less attractive place for illegal workers, Arizona has operated and will continue to operate under the Legal Arizona Workers Act as amended in May 2008, and this is the statute with the most direct impact on business owners. This state statute places responsibility on employers to ensure that their employees are eligible to work in the United States. This law requires Arizona employers to comply in good faith with Form I-9 requirements and confirm a worker’s eligibility to work in the U.S. using the E-Verify System. This requirement applies to independent contractors as well as employees. The employer possibly may use the Social Security Number Verification Service for a worker’s status if the E-Verify System fails to confirm a worker’s status. However, the confirmation of status should be continued through the E-Verify System, despite its shortcomings. An employer should regularly determine that its paperwork is in order and up-to-date.

Failure to make sure a worker’s status allows employment in Arizona will subject the employer to the loss of its Arizona business license. Intentional and knowing acceptance of false identification from a worker exposes the employer to criminal sanctions. Over and above these legal consequences, there are the economic costs of training and educating employees who may not have proven their legal status to maintain employment. After discharging undocumented employees, the employer will have to expend costs to recruit and train replacement employees who do have legal status. The employer’s business will also suffer possible disruption. The Arizona legislature contemplated that if employers strictly complied with the Legal Arizona Workers Act as amended, the demand for immigrant workers could be controlled. Unfortunately, this has not been the result.

Business Impact of SB 1070

Until the enactment of SB 1070, it was not unlawful to be an illegal immigrant in Arizona. It is, of course, against federal law, but because of the federal government’s poor enforcement of that law, the illegal immigration problem has not diminished. SB-1070 makes it a violation of Arizona law to be in Arizona and the U.S. illegally. It does no more than mirror the federal law at the state level.

For the Arizona business owner, SB 1070 should not be noticeable from the aspect of imposing more screening obligations. It does not delete any of the sanctions under the Legal Arizona Workers Act. SB 1070 is essentially a law enforcement statute. State and local police officers now will be authorized, under the application of certain safeguards to the public, to inquire of a person’s immigration status. The practical impact of SB 1070 for the employer will likely be to ratchet up the employer’s attention to its workforce and whether all workers have legal status. Until law enforcement starts enforcing the statute and the courts interpret the specific provisions, one can only speculate as to the true effect and impact. For example, SB 1070 makes it illegal for someone to conceal, harbor or shield an illegal immigrant from detection if the person knows or recklessly disregards the fact the immigrant is in the country illegally while also committing another criminal offense. Could an employer or landlord be charged with “harboring” an illegal immigrant under the circumstance described above? Most likely not, but it is premature to draw any firm conclusions.

The SB 1070 inquiry is not without limits as a person has to have been lawfully stopped, detained or arrested by a law enforcement officer. If, after a person has been detained or arrested, the officer has reasonable suspicion the person is an alien and is unlawfully present in the U.S., the officer shall make a reasonable attempt, when practicable, to determine the person’s immigration status and must verify it with the federal government. The implementation of this check is not to be based upon race, color or national origin, except as allowed by the U.S. or Arizona Constitution. The police officer must presume the person is in the country legally if the person presents (1) a valid Arizona driver’s license, (2) a valid Arizona non-operating identification license, (3) a valid tribal identification or (4) if the entity requires proof of legal presence in the U. S. before issuance, any valid U.S. federal, state or local government issued identification.

Summary

For the Arizona business owner, caution should be used in the hiring process to prevent state law sanctions being applied for employing undocumented aliens under the Legal Arizona Workers Act. The business owner should regularly determine that employee paperwork is up-to-date, particularly the I-9 Forms. In light of the existing Legal Arizona Workers Act and SB 1070 bringing the immigration issue to a high priority in our state, the required inquiry as to the legality of the employee’s presence in Arizona is not only appropriate for an employer, but a necessity, in light of the potentially negative criminal and economic consequences for engaging employees and independent contractors without proper immigration status.

SB 1070 goes into effect July 29th. Until officers start enforcing the law, prosecutors begin filing charges regarding it and the courts begin interpreting the new statute, no one knows exactly what the full impact of SB 1070 on the business community will be.

Currently of counsel to the Firm, Brownell K. Boothe specializes in corporate law and employment law. For more information, contact B. K. Boothe: sctsdllaw@cox.net or Michael L. Kitchen at mlkitchen@mclawfirm.com.