There have been many headlines regarding the United States Supreme Court’s decision in Arizona v. U.S . The question before Alabama employers is what will be the practical impact of this decision on the employment provisions of Alabama’s immigration law?
Before coming to any conclusions, the Arizona case must be considered in combination with Chamber of Commerce v. Whiting, another recent Supreme Court case. In Whiting, the Supreme Court upheld Arizona’s mandate that all Arizona employers use E-Verify and upheld Arizona’s authority to impose penalties such as the suspension or revocation of the business licenses of in-state employers that employ unauthorized aliens. The Supreme Court held that “While IRCA [the federal law] prohibits States from imposing ‘civil or criminal sanctions’ on those who employ unauthorized aliens, it preserves state authority to impose sanctions ’through licensing and similar laws.’” §1324a (h) (2).”
Remember that under section 15 of Alabama’s immigration law, which remained unchanged after recent amendments to the law, employers are subject to penalties if they knowingly employ, hire for employment or continue to employ unauthorized workers within Alabama. The penalties for hiring unauthorized aliens range from temporary suspension of business licenses and permits for the first violation to permanent revocation of the business licenses statewide for multiple violations. Furthermore, employers that are found to have violated the law will have to comply with additional reporting requirements for up to three years after discovery of a violation. As well, Alabama employers who fail to register and use E-Verify will lose the safe harbor protection with respect to the hiring of employees whose employment authorization has been verified through the program.
So what does this all mean? The Arizona decision makes absolutely clear that the Immigration Reform and Control Act of 1986 (“IRCA”) is a comprehensive framework that covers all aspects of enforcement related to the employment of unauthorized workers. It thus calls into question the states’ ability to impose any penalties not directly related to “licensing or similar laws” on employers for the hiring of unauthorized workers. However, as Pepper mentioned in an earlier post, even with the sweeping preemption language found in the Arizona decision, the Court does not call into question its earlier decision in the Chamber case. Therefore, some of the sections of Alabama’s immigration law, such as the E-Verify mandate and the penalties imposed against those employers that knowingly hire unauthorized aliens, may likely survive legal challenges.
On the other hand, other employment-related provisions of Alabama’s immigration law like section 17 that provides a claim for discrimination and wrongful termination and section 16 that disallows a tax deduction for the expense associated with employing unauthorized workers (both of which are currently enjoined by lower courts) may be more likely to be preempted by federal law under the rationale the Supreme Court used in the Arizona decision.