STATE IMMIGRATION LAW PROVISIONS OF CONCERN TO EMPLOYERS

Transcription

1 ALABAMA (2011)* STATE IMMIGRATION LAW PROVISIONS OF CONCERN TO EMPLOYERS WORKSITE ENFORCEMENT Prohibits businesses from knowingly employing Businesses found to have knowingly hired unauthorized workers after January 1, 2012 face loss of business licenses. Requires employers to use E-Verify for new workers starting January 1, Makes it a discriminatory practice to fire or fail to hire a legal resident when an unauthorized worker is on the payroll. Prohibits unauthorized immigrants from applying to jobs. Prohibits the transport of unauthorized immigrants. * See also POLICING MEASURES below. ARIZONA (2007)^ Requires all employers to use E-Verify. Suspends licenses of businesses found to employ unauthorized workers: ten days for a first offense, permanent revocation for a second. Allows prosecutors to investigate anonymous complaints that businesses are employing Holds businesses liable if their contractors hire ^ 2008 legislation clarifies that provisions apply only to hires after January 1, ARIZONA (2008) Clarifies that the 2007 law mandating that all employers use E-Verify applies only to employees hired after January 1, For businesses with multiple work sites, stipulates that a violation at one site applies only to that location and does not affect other workplaces. Employers who pay workers in cash must comply with state tax-withholding laws and worker-compensation laws or face fines up to $5,000. As of June 27, 2011

2 ARIZONA (2010)* Requires employers to keep employees E-Verify records on file. Makes failure to use E-Verify or failure to keep records of verifications a felony. * See also POLICING MEASURES below. COLORADO (2006) Requires all businesses contracting with the state to use E-Verify. Requires other employers to affirm that employees are authorized to work. Prohibits employers from falsifying employee identification documents. Subjects employers to fines of up to $5,000 for a first offense and up to $25,000 for subsequent offenses. FLORIDA executive order (2011) Requires state agencies and companies that have contracts with state agencies to use E-Verify. GEORGIA (2006) Requires public employers and businesses contracting with the state to use E-Verify. On state income tax returns, prohibits employers from deducting as business expenses $600 or more paid to Requires employers to withhold from state income tax 6 percent of wages paid to any worker who fails to present a valid taxpayer identification number. GEORGIA (2010) Prohibits contractors who do not use E-Verify from working on public projects. 2

3 GEORGIA (2011)* Requires businesses with more than ten employees to enroll in E-Verify. Businesses with 500 or more employees must use E-Verify beginning January 1, 2012, businesses with between 100 and 500 employees must use E-Verify beginning July 1, 2012, and businesses with between ten and 100 employees must use E-Verify beginning July 1, Requires use of E-Verify before a business can obtain a business license or renewal. Criminalizes the transport of Makes it a felony to present false documents or information when applying for a job. * See also POLICING MEASURES below. HAWAII (2010) Revokes and suspends business licenses of construction contractors who knowingly hire IDAHO executive order (2008) Requires the state to develop procedures to ensure that all public employees are authorized to work and all businesses contracting with the state hire only authorized workers. IDAHO executive order (2009) Requires all state agencies and contractors to use E-Verify. ILLINOIS (2007) Prohibits employers from using E-Verify until it can be certified that the Social Security Administration database is 99 percent accurate. STATUS: U.S. District Court ruled the law invalid. ILLINOIS (2009) Prohibits the state and localities from requiring employers to use E-Verify. 3

4 INDIANA (2011) Requires all state agencies and local government agencies to use E-Verify. State agencies may renew contracts only with employers who use E-Verify and sign an affidavit affirming that they do not knowingly employ Prohibits state agencies and local governments from awarding a grant of more than $1,000 to any business that does not use E-Verify. Prohibits a business that knowingly hires unauthorized workers from deducting expenses associated with those employees in the calculation of its state income taxes. KANSAS (2010) Makes it a misdemeanor to knowingly employ an unauthorized worker. LOUISIANA (2011) Requires public contractors and subcontractors to use E-Verify for employees working on contracts entered into after January 1, Contractors not using E-Verify can be barred from contract work for up to three years. Contractors whose work is canceled because they are not using E-Verify will pay any additional costs incurred by the government. STATUS: awaiting governor s signature. MINNESOTA executive order (2008) Requires state agencies and state contractors to use E-Verify. Creates financial incentives, including augmented state subsidies, for other businesses to use E-Verify. STATUS: executive order expired. MISSISSIPPI (2008) Requires all state agencies to use E-Verify. Requires all businesses with 30 or more employees to use E-Verify as of July 1, Businesses with fewer than 30 employees are required to start using E-Verify on July 1, Makes it a felony for unauthorized workers to knowingly accept work in the state. Allows U.S. residents and citizens to sue employers if they are fired and replaced by 4

5 MISSOURI (2008) Requires public employers and businesses bidding on state contracts to use E-Verify. Shelters private employers that use E-Verify from prosecution. Suspends licenses of businesses found to employ unauthorized workers: 14 days for a first violation, a year for a second, permanent revocation for a third offense. Prohibits employers from knowingly misclassifying workers as independent contractors. Allows prosecution of employers on the basis of citizen complaints, but includes protections against frivolous charges. Only the federal government can determine that a worker is unauthorized, and the state can take no punitive action without federal confirmation of an infraction. NEBRASKA (2009) Requires public entities, contractors on public projects and businesses qualifying for state tax incentives to use E-Verify. NEVADA (2007) Opens businesses found to employ unauthorized workers to fines determined by the Nevada Tax Commission. Protects businesses that can prove they used the Social Security Number Verification System to verify workers legal status. NORTH CAROLINA (2006) Requires state agencies to use E-Verify. NORTH CAROLINA (2011) Requires businesses with more than 24 workers to use E-Verify. Businesses with more than 500 employees must use E-Verify by October 1, 2012, businesses with more than 100 employees by January 1, 2013 and businesses with more than 24 employees by July 1, E-Verify is not mandatory for temporary employees who work 90 days or less in a twelve-month period. 5

6 OKLAHOMA (2007) Requires public employers to use E-Verify or an equivalent federal verification system run by the government or a third party. Requires state contractors and subcontractors to use E-Verify or an equivalent verification system. Requires businesses to verify the status of independent contractors. Allows U.S. residents and citizens to sue businesses if they are fired and replaced by unauthorized workers, but shelters employers who use E-Verify. Makes it a felony to transport or harbor unauthorized immigrants. RHODE ISLAND executive order (2008) Requires state agencies and businesses contracting with the state to use E-Verify. STATUS: executive order rescinded in SOUTH CAROLINA (2008) Requires public employers to use E-Verify. Requires private employers to use E-Verify to check workers immigration status or confirm that employees have drivers licenses from states with license requirements as strict as South Carolina s. Suspends licenses of businesses found to employ unauthorized workers: up to 30 days for a first violation, up to 60 days for a second, permanent revocation for a third offense. Shelters businesses that use E-Verify from prosecution. Allows U.S. residents and citizens to sue employers if they are fired and replaced by SOUTH CAROLINA (2011) Removes driver s license provision from 2008 law. STATUS: awaiting governor s signature. TENNESSEE (2007) Suspends for up to one year the licenses of businesses found to knowingly hire Protects businesses that use E-Verify from prosecution. Protects businesses that complete federal I-9 forms from prosecution, even if the information entered is later found to be false. Prohibits use of taxpayer identification numbers as proof of legal status. 6

7 TENNESSEE (2010) Authorizes the state to direct business to vendors who employ only U.S. citizens or authorized workers. TENNESSEE (2011) Prohibits employers from knowingly hiring Requires employers with six or more employees to enroll in E-Verify or confirm that employees have drivers licenses from states with license requirements as strict as Tennessee s. Employees who enroll in E-Verify must start using the system on October 1, 2011 and maintain records of all results. Fines employers $1,000 for knowingly hiring unauthorized workers, suspends business licenses 30 days for a first offense, one year for a second offense and permanently for a third. UTAH (2008) Requires public employers and businesses contracting with the state to use E-Verify or an equivalent program run by the government or a third party. Allows U.S. residents and citizens to sue employers if they are fired and replaced by Makes it a misdemeanor to transport, conceal or harbor an unauthorized immigrant. UTAH (2010) Requires private employers with 15 or more employees to use E-Verify. Exempts new hires on H-2A and H-2B visas. Employers using E-Verify who inadvertently hire unauthorized workers are exempt from state penalties. UTAH (2011)* Creates a guest worker program for unauthorized immigrants living in Utah. To be entitled to a guest worker permit, an applicant must have lived in Utah prior to May 11, 2011, pay a $2500 fine and pass a criminal background check. Utah will cooperate with the Mexican state of Nuevo Leon to bring in workers to meet future labor needs. Utah to request a federal waiver for the guest worker program, scheduled to begin operation on July 1, * See also POLICING MEASURES below. 7

8 VIRGINIA (2008) Shuts down businesses whose officers or directors are convicted under federal law of knowingly hiring Requires employers signing state contracts to state they will not knowingly employ VIRGINIA (2010) Requires state agencies to enroll in E-Verify by December 1, VIRGINIA (2011) Requires state agencies to enroll in E-Verify as of June 1, Requires public contractors with more than 50 employees and contracts worth more than $50,000 to participate in E-Verify or be debarred for one year. WEST VIRGINIA (2007) Makes it a misdemeanor to knowingly hire Requires employers to verify workers status using birth certificates, Social Security cards, passports or other forms of identification. Businesses found to knowingly hire unauthorized workers can be fined up to $1,000 for a first violation and up to $5,000 for a second. For third offense, an employer can be fined up to $10,000, imprisoned for up to one year or denied a business license. Prohibits businesses from deducting as business expenses any wages of $600 or more paid to an unauthorized worker. WEST VIRGINIA (2010) Any employer who knowingly hires an unauthorized worker is guilty of a misdemeanor and can be fined between $100 and $1,000 for each violation. Any employer who knowingly and willfully provides false records about the work status of employees is guilty of a misdemeanor and faces jail time not to exceed one year or fined not more than $2,500, or both. 8

9 ALABAMA (2011) POLICING MEASURES ARIZONA SB 1070 AND BILLS MODELED ON IT Upon any lawful stop, detention, or arrest made by a state, county, or municipal law enforcement officer of this state in the enforcement of any state law or ordinance of any political subdivision thereof, where reasonable suspicion exists that the person is an alien who is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the citizenship and immigration status of the person, except if the determination may hinder or obstruct an investigation. Requires law enforcement to detain any alien whose lawful immigration status cannot be verified. ARIZONA (2010) For any lawful contact made by a law enforcement official... where reasonable suspicion exists that the person is an alien who is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person. Requires law enforcement to verify the immigration status of any person arrested prior to their release. GEORGIA (2011) During any investigation of a criminal suspect by a peace officer, when such officer has probable cause to believe that a suspect has committed a criminal violation, the officer shall be authorized to seek to verify such suspect's immigration status. If during the course of the investigation into such suspect's identity, a peace officer receives verification that such suspect is an illegal alien, then such peace officer may take any action authorized by state and federal law, including, but not limited to, detaining such suspected illegal alien. SOUTH CAROLINA (2011) If a law enforcement officer... lawfully stops, detains, investigates, or arrests a person for a criminal offense, and during the commission of the stop, detention, investigation, or arrest the officer has reasonable suspicion to believe that the person is unlawfully present in the United States, the officer shall make a reasonable effort, when practicable, to determine whether the person is lawfully present in the United States, unless the determination would hinder or obstruct an investigation. STATUS: awaiting governor s signature. 9

10 UTAH (2011) Any law enforcement officer who, acting in the enforcement of any state law or local ordinance, conducts any lawful stop, detention, or arrest of a person... and the person is unable to provide to the law enforcement officer a document [that verifies his or her legal status]... and the officer is otherwise unable to verify the identity of the person, the officer shall request verification of the citizenship or the immigration status of the person. Requires police to check the immigration status of individuals arrested for felonies and serious misdemeanors. 10

11 HOW THE LAW IS ENFORCED IN THE STATES SOUTH CAROLINA STRONG ENFORCEMENT The Department of Labor, Licensing and Regulation oversees enforcement. Authorities are able to scrutinize businesses hiring records. If authorities find unauthorized immigrants on the payroll, businesses have 72 hours to correct the problem. Businesses that fail to do so can be fined up to $1,000 for each violation and face possible revocation of business licenses. State program is available to educate employers about the legal consequences of hiring The state frequently alerts the media about employers found to have hired RESULT Since 2009, the state has cited more than 200 businesses for hiring unauthorized workers and collected more than $700,000 in fines. Ninety-two percent of large South Carolina companies are enrolled in E-Verify. ARIZONA WEAK ENFORCEMENT No statewide agency oversees enforcement. Prosecutors lack access to employer records. County attorneys and sheriff s offices wait for complaints to be filed, then conduct individual investigations. County prosecutors must prepare a case for each employer suspected of hiring unauthorized immigrants. Only a limited education program is available for employers. RESULT Only three businesses were prosecuted in 2008, the first year of mandatory E-Verify. 11