Arizona Governor Napolitano signs immigrant bill targeting employers
Arizona now leads the nation in dealing with illegal immigration. This is one heck of a sanction. Perhaps better than fines or jail time.
Matthew Benson
The Arizona Republic
Jul. 2, 2007 04:20 PM
Gov. Janet Napolitano today signed sweeping legislation against employers of undocumented workers, and asked for cooperation from legislative leaders to call a special session to address what she called critical flaws in the bill.
With the governor's approval of House Bill 2779, Arizona takes the lead among states in dealing with the underground market in illegal labor. Napolitano termed the bill “the most aggressive action in the country.”
Her signature comes just days after the failure of a comprehensive immigration reform measure being considered by the U.S. Senate. Napolitano has lamented that proposal's collapse, and blasted Congress anew on Monday as she said Arizona could no longer afford to wait.
“We're dealing somewhat in uncharted territory right now – uncharted territory because of the inability of the Congress to act,” Napolitano said. “The states will take the lead, and Arizona will take the lead among the states.”
After Jan. 1, every employer in Arizona will be required to verify the legal status of their employees through a federal database known as the Basic Pilot program. The law means a license suspension for any business caught "knowingly" or "intentionally" hiring an undocumented worker. A second violation within three to five years, depending on the circumstances, will result in a permanent license revocation - the death penalty for a business.
The law will have wide-ranging impacts on those businesses and the more than a quarter-million undocumented individuals estimated to be in Arizona workplaces already.
“Arizona businesses now must play by the same rules or face the consequences,” bill sponsor Rep. Russell Pearce, R-Mesa, said in a statement. “Arizona will have one fair system for employers, and no longer are they going to be able to rely on cheap, illegal labor.”
But immediate opposition came from the Arizona Chamber of Commerce and Industry, which called the measure “a crippling blow to Arizona business.”
“Arizona's elected officials have caved to the political pressure of this emotional issue and deflected the burden for a national immigration problem onto the backs of businesses in Arizona,” wrote Arizona chamber President and CEO Glenn Hamer. He said the Basic Pilot program is error-prone and figures to be overwhelmed when thousands of Arizona businesses begin its use.
Napolitano acknowledged there are problems with the bill, and said she plans to sit down with legislative leaders in the days ahead to gauge interest in a fall special session. Napolitano pointed to significant issues that need correction, including:
bullet Insufficient funding for enforcement.
bullet Overbroad language that could cause a chain of businesses to be penalized if a single location was cited.
bullet The lack of an exemption to ensure that critical facilities such as hospitals and power plants don't have to temporarily close their operations if undocumented workers are found among their staffs.
“For an immigration violation for hiring a nursing aid, are you going to close down a nursing home?” Napolitano asked.
Despite the problems, she said the bill takes a big step toward addressing Arizona's market in illegal labor, which is seen as a major draw to the Valley for would-be border crossers. A veto, Napolitano said, would have sent lawmakers back to Square One next session and the likelihood of another legislative “morass.”
“It's time to move the issue forward,” she said.
The law in its current form has many legal problems, said Julie Pace, a Phoenix employment attorney who advises clients on employment issues.
The legal problems involve violations of due process, interstate commerce, and federal laws, she said. Her firm, Ballard Spahr Andrews & Ingersoll, LLP, plans on working with a business coalition to lead a legal challenge against the law.
“It puts Arizona at a competitive disadvantage, and Arizona businesses are hurt the most,” she said. “We're going to have law enforcement intruding into businesses more frequently. It's going to increase (employer's) attorney's fees, accounting fees, and additional staff. It's going to give Arizona a black eye.”
Latino leaders and activists reacted strongly and quickly to the new law. A coalition plans on asking for a special session to improve the bill, said Mary Rose Wilcox, a Maricopa County Supervisor and Hispanic activist.
“We realize employer sanctions are wanted, but we also feel that immigration reform cannot be done piecemeal like this,” said Wilcox. “People are just incensed about this. This will be disastrous for the state of Arizona.”
Includes material from Republic reporter Yvonne Wingett
House Bill 2779 (Fair and Legal Employment Act)
Provisions
o Would prohibit employers from knowingly or intentionally hiring undocumented workers.
o Starting Jan. 1, would require all employers to run their employees through the Basic Pilot Program to determine their legal status. Use of the program would act as a sort of immunity for employers facing prosecution under the law.
o Would form an eight-member committee to study employer-sanctions laws in Arizona and whether they are fairly enforced. A committee report would be due to the governor, speaker of the House and Senate president by the end of 2008.
Penalties
o 1st offense: Businesses caught "knowingly" employing an undocumented worker would lose their license for up to 10 days. Those caught "intentionally" hiring an undocumented worker would lose their license for at least 10 days.
The court would order that the employment of all undocumented workers at the business be terminated, and require the employer to sign an affidavit stating that the workers were fired and they will not hire such workers in the future. Employers would be placed on probation for three years (five, for "intentional" violations)
o 2nd offense (while on probation): Permanent revocation of the business license.
Enforcement
Investigations would be conducted based on complaints against employers.
o If the complaint was shown to be valid, the investigator would be required to notify U.S. Immigration and Customs Enforcement and local law enforcement.
o From the state's 2007-08 General Fund, the bill would provide $100,000 to the Arizona Attorney General's Office, and $2.4 million to be distributed to county prosecutors.
Arizona now leads the nation in dealing with illegal immigration. This is one heck of a sanction. Perhaps better than fines or jail time.
