Employer-sanctions law: Murky or easy to enforce?
Arizona Daily Star
July 22, 2007
(Tucson, AZ)

Author: BRADY MCCOMBS, ARIZONA DAILY STAR Estimated printed pages: 7

LaWall calls it arduous, but others disagree

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Arizona's stiff new employer- sanction law delivered a clear message to companies - hire legal workers or else.

Backing that threat with action, though, will be an arduous task.

The law, which would revoke state licenses for companies that are found to have "knowingly" or "intentionally" hired illegal workers, faces a myriad of hurdles. A lawsuit has already been filed challenging its constitutionality.
If it survives that, a host of other logistical issues await.

"It's going to be difficult to figure out exactly what we need to do, and how we need to do this," said Pima County Attorney Barbara LaWall. "What is a complaint? What is the burden of proof you need to prove it in court? I'm still not quite sure exactly what an investigation needs to consist of."

Proving a company "knowingly" hired an illegal immigrant will require a strenuous investigation, she said. She plans to hire one investigator to handle complaints and investigations but doesn't know if that will be sufficient.

The legislation's sponsor, Rep. Russell Pearce, R-Mesa, doesn't want to hear excuses from county attorneys. The Legislature allocated money to them - including $500,000 for Pima County - to prevent them from having an excuse not to enforce the law, he said.

The law is fair, practical and easy to enforce, not unlike any other law, he said. "If you get a complaint, it's your job to investigate," Pearce said.

In response to concerns about the difficulty in determining "frivolous" and "knowingly," he said, "the county attorney has to use his good sense."

Maricopa County Attorney Andrew Thomas agrees with Pearce, calling it feasible to enforce and telling critics he'll listen to their worries but reminding them, "the law is the law, and it will be enforced."

Ed Rheinheimer, Cochise County attorney, said opinions about enforcement are premature. "I'm going to wait and see what comes out on the other end of the constitutional challenge and see what we are left with," he said.

Others agree with LaWall's assessment. The law is riddled with legal problems and county attorneys may not have the time or money to enforce it, said Tibor Nagy, a Tucson labor attorney with Ogletree Deakins, a national employment-law firm.

"There are so many issues and no one has the resources to follow up on this except the most blatant cases," Nagy said.

LaWall said she understands people's frustration about the illegal-immigration problem, but county prosecutors should not be tasked with enforcing immigration law.

"We're not talking about people who have committed crimes here other than the federal crime of coming into this county unauthorized," LaWall said. "My job is to protect the public safety of the people of this county and it's very difficult to have the adequate resources to deal with the murderers, the rapists, the child molesters, the drunk drivers, the armed robbers, the drive-by shooters, the gangbangers. That is my focus."

Among her worries about the new law is a stipulation requiring cases be expedited and hearings scheduled ahead of other criminal cases. She called that "outrageous" and said she's offended by it.

Illegal immigrants are a threat to public safety, Pearce argues. He won't be satisfied until convictions are reached.

"I want businesses to honor the law," he added. "I want to protect legitimate businesses who follow the law from illegitimate businesses who don't follow the law and have an unfair advantage."

Complaints can come from anybody and in any form, such as a phone call or letter, as long as it's based on reasonable evidence, Pearce said. The law includes language to punish false complaints, which will prevent frivolous complaints, he said.

LaWall's office is in the process of formulating plans for how to enforce the law. Some early ideas include posting a complaint form on the county Web site and requiring people to file it at the office and sign an affidavit.
The person who filed the complaint would have to be available to answer questions from the investigator.

She wants to make sure complaints are more than a superficial judgment from afar.

"It can't be that somebody comes to us and says, 'there are five Hispanic-looking people at ABC construction company and they all speak Spanish and I think that company's hiring undocumented persons,' " LaWall said. "That's not enough."

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THE LOWDOWN:

What the new Arizona law does:

* Prohibits employers from knowingly hiring undocumented workers.

* Beginning Jan. 1, employers will need to run potential employees through the federal Basic Pilot Program to determine legal status.

* By the end of 2008, an eight-member committee will report on the law's effects and fairness.

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WHAT OTHERS ARE SAYING

Beth-El Klein

Director of human resources at Loews Ventana Canyon Resort:

Klein, who started using the Basic Pilot Program four years ago when she started at Loews, raves about the system. It automatically checks green cards and Social Security numbers and usually delivers an answer in five to eight seconds, she said. The answer is either a confirmation or certificate of nonconfirmation.

"I love it. It's actually very easy to use and I feel very confident in the information we get back in just a few seconds."

If it's a nonconfirmation, the employee has to take the letter to Social Security and find out what the problem is. Once the problem is solved, Klein can usually run the employee through the system again the next day and it comes back fine. A few nonconfirmations take awhile to work out, but it always works out within a week or so, she said.

"Occasionally it's someone who really is illegal and thinks they can get away with it and they never come back again. They're trying to scam the system," Klein said. "It definitely protects us, so I know everyone we hire is legal to work in the United States."

She added: "This should have been a law years ago all over America."

Steven von Prisk

Director of Human Resources AAA Landscaping.

He runs every new hire through an online Social Security database and doesn't hire anybody whose name and Social Security number don't match.
He'll continue to use that program until he's required by law to switch to the Basic Pilot, he said.

The law goes too far and is unenforceable, he said. To him, it's clear that the authors are politicians and not employers.

"Where are the thousands and thousands of agents going to come from, how are they going to get paid, to investigate all these complaints?" von Prisk asked. "Everytime there is a complaint, someone has to act."

Alonzo Peña

Immigration and Customs Enforcement special agent in charge for Arizona

The agency supports the new law and is committed to helping the state's efforts, Peña said. Its officials have met with the governor and others to craft a strategy to handle the expected influx of inquiries.

"For us to be successful in securing the border, work site is a key element," he said.

Proving the "knowingly" part is very labor-intensive, as the state will learn, he said. But he said the requirement that all employers sign up for the basic verification system is a great measure.

"I'm very optimistic that this law is going to be an effective tool in deterring the hiring of illegal aliens in the state of Arizona and there will be a ripple effect," he said.

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PROBLEMS WITH THE LAW

Constitutionality

Two Arizona business groups have sued the state contending that the measure intrudes on immigration law that falls to the federal government, and violates the state constitution by requiring county prosecutors to investigate every complaint.

The legislation's sponsor, Rep. Russell Pearce, calls it a frivolous lawsuit and said employers who don't hire illegal workers shouldn't be worried.

"It's basically a confession," he said. "Apparently, these people have something to worry about or they wouldn't be so nervous."

Lack of resources for enforcement

County attorneys must investigate complaints of businesses hiring illegal workers; Superior Court judges will be charged with determining if employers are guilty of "knowingly" or "intentionally" hiring illegal immigrants.

Investigations to prove such guilt take Immigration and Customs Enforcement six months to a year and require informants, undercover work and surveillance.

The bill appropriates $2.43 million for fiscal year 2007-08 for the state attorney general and county attorneys, to ensure county attorneys don't have an excuse to drag their feet, Pearce said. But the money might not be sufficient to create and maintain an enforcement plan, a huge effort, said Pima County Attorney Barbara LaWall.

System overload?

There are questions about the capacity and efficiency of the electronic employment-eligibility verification program.

The approximately 130,000 employers in Arizona will be required to use the Web-based employee verification system (formerly known as the Basic Pilot Program), which will amount to a six-fold increase over the 18,800 employers who now use it.

U.S. Citizenship and Immigration Services, which administers the system, says it can handle the influx. It receives about 3 million inquiries annually but has the capacity to handle 25 million, said spokeswoman Marie Sebrechts.

In preparation for potential immigration reform that would have required businesses nationwide to use the system, the agency received a special $114 million appropriation in fiscal year 2007 for improvements and has asked for $30 million next year, she said. "We're in good shape," Sebrechts said.

But, the system isn't foolproof.

It doesn't prevent identity fraud, for example, when employees present borrowed or stolen genuine documents, the Government Accountability Office said in a June report. The agency is testing a photograph screening tool that would help an employer identify fraud but it isn't ready yet.

The system is also vulnerable to employer fraud, such as entering the same identity information to authorize multiple workers, the GAO report said. And while most queries entered by employers - about 92 percent - are confirmed within seconds, resolving nonconfirmations can take several days, or in a few cases, weeks.

Critics point out that Swift & Co. was voluntarily using the system when Immigration and Customs Enforcement arrested more than 1,200 workers at its meatpacking plants in six states in December.

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HOW IT WILL BE ENFORCED

1 A complaint - which isn't defined in the bill - is submitted to the attorney general or county attorney of an employer who is thought to be hiring illegal immigrants.

2 The attorney general or county attorney is required to investigate the alleged violation, in part by verifying the work authorization through the Basic Pilot Program.

3 If the complaint is not "frivolous," county attorneys are required to notify Immigration and Customs Enforcement and local law enforcement officials about the illegal immigrant.

4 The county attorney must bring "an action for violation" against the employer.

5 A Superior Court must expedite any action, including scheduling the hearing at the earliest possible date.

6 If a court finds an employer "knowingly" employed illegal immigrants, a business could lose its license for up to 10 days. An "intentional hire"
could result in more than a 10-day loss. Employers will be placed on three years' probation, forced to fire all illegal employees and to sign an affidavit promising not to do it again. If caught with a second offense while on probation, a business will permanently lose its license.

*The law prohibits state, county or local officials from reaching conclusion on immigration status of a worker without conferring with the federal government.

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POSSIBLE FIXES

Gov. Janet Napolitano has said she would like to call a special legislative session to discuss "flaws" with the law but it appears unlikely that will occur. Pearce, the legislation's sponsor, has said he'll fight the special session and sees no reason to change the law.

Napolitano has identified the following flaws:

* The law needs to protect "critical infrastructure" worksites, such as hospitals, nursing homes and power plants.

* Businesses with multiple locations - such as grocery chains - should face sanctions only at the location where the violation occurred, she said.
Pearce said that's already clear in the law.

* More funding for attorney general and county attorneys is needed.

* A specific provision to guard against racial discrimination is needed.

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HOW BUSINESSES CAN PREPARE

* Read the law by going to the Legislature Web site (http://www.azleg.gov) and entering the bill's number, HB2779, in the search box at the top right.

* Watch for seminars put on by labor attorneys on how to prepare.

* The Tucson offices of labor attorneys Ogletree Deakins have prepared a packet on the law and how to prepare. Phone number: 1-866-822-0149.

* The Arizona Chamber of Commerce is hosting free, live "Webinars" on how to use the employment verification system that include a demo of the program with a representative from U.S. Citizenship and Immigration Services. The next one is 11 a.m. Thursday. To register, e-mail info@azchamber.com, or call 1-602-248-9172.

* Reporter Brady McCombs: 573-4213 or bmccombs@azstarnet.com.
Section: TUCSON/REGION
Page: B1

Index Terms: PIMA COUNTY GOVERNMENT LAW ARIZONA STATE GOVERNMENT LEGISLATURE EMPLOYMENT IMMIGRATVIOL Copyright 2007 The Arizona Daily Star Record Number: MERLIN_5286022


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