Below is a summary of the new law’s provisions and an explanation of what it will mean for Arizona employers. Comments about some of its provisions have been included in italics.
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The State and all local governments in Arizona must enforce federal immigration laws to the full extent that they are legally permitted to do.
The extent that state and local governments are entitled to enforce federal immigration laws is a subject that is not defined and is in dispute.
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All law enforcement officers of the State, counties, cities and towns in Arizona must determine the immigration status of every person “where reasonable suspicion exists that the person is an alien who is unlawfully present in the United States” except if doing so “may hinder or obstruct an investigation.”
It is not defined and is unclear what constitutes “reasonable suspicion” that a person is undocumented. It is unclear how either a civilian or law enforcement officer would know if an immigration determination would hinder an investigation at the time that the officer is expected to make the determination.
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When implementing the law, law enforcement or local governments “may not solely consider race, color or national origin” except as permitted by the U.S. or Arizona Constitutions.
The word “solely” makes this purported anti-discrimination provision an authorization to allow racial profiling and discrimination, as long as the government is not 100% racially motivated. If a law enforcement officer is suspicious of a person based 99% on the person’s race or national origin, but 1% based on something else, the new Arizona law permits the government to take action against the person.
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A person stopped for an immigration check is presumed to be lawfully in the U.S. if the person has an Arizona driver’s license or nonoperating i.d. license, a tribal i.d., or an i.d. from the federal government or another state or local government if the other government “requires proof of legal presence in the United States before issuance.”
Any U.S. citizen with a driver’s license from a state that does not require proof of citizenship or immigration status would be at risk unless they obtained and carried a passport when in Arizona.
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Arizona residents may sue the State, any county, city or town if it fails to enforce federal immigration law “to the full extent permitted by federal law.” The State, county, city or town would be required to pay a penalty of $1,000 – $5,000 per day, with the fine being paid the State’s Gang and Immigration intelligence Team Enforcement Mission (GITEM) Fund. Attorneys’ fees would be awarded to the successful party.
Counties, cities and towns could face countless lawsuits and large fines if police do not take the maximum steps to stop and question people for which there could be a reasonable suspicion of immigration status, as ill-defined as that requirement is.
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Individual law enforcement officers are indemnified from liability for their actions enforcing the law unless they are acting in bad faith.
Law enforcement officers should not fear liability for claims that they violated the civil rights of the people they stop and question because the county, city or town that employs them will be liable.
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It is now a violation of Arizona criminal law for aliens to fail to carry proper papers required by federal law.
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It violates Arizona law to impeded traffic while stopping a vehicle on a street or roadway to pick up a passenger for work at a different location.
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It is a criminal violation to transport, conceal or harbor an unauthorized alien if the person “knows or recklessly disregards the fact that the alien” is unauthorized to be in the U.S. Penalties include impoundment of the vehicle used to transport an alien plus a fine.
This provision could affect employers if they are alleged to know or have “recklessly disregarded” whether their employees or customers are unauthorized. An undocumented employee driving or riding in a company vehicle could cause the employer to lose the vehicle. The law does not define what will be considered to be “reckless disregard” for immigration status.
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An affirmative defense of entrapment is added to the Arizona employer sanctions law for situations in which the idea of violating the law originated with law enforcement officers or their agents.
This will provide some protection from the hidden video and “plants” used in employer sanctions enforcement by the Maricopa County Sheriff’s Office. Provisions in the bill that would have allowed County Attorneys to issue their own subpoenas against employers were deleted from the bill before final enactment.
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Employers are required to keep records of their use of E-Verify “for the duration of the Employee’s employment or at least three years, whichever is longer.”
The Arizona Legislature apparently intended to enact the same record keeping requirement for E-Verify records that is used for I-9 documentation under federal law, but the Arizona Legislature made a mistake. I-9 records must always be kept for at least three years after they are completed or one year after termination of employment, whichever is longer. Under Arizona law, different than federal law, E-Verify documentation does not have to be retained after termination of employment if the worker was employed for three years or more.
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The title of the law is the “Support Our Law Enforcement and Safe Neighborhoods Act.”
The effective date of the law will be 90 days after the adjournment of the legislative session. The session is still continuing and is expected to adjourn within the next couple of weeks, which will place the effective date of the law to be in August. There will undoubtedly be legal challenges to the constitutionality of the law.
Between now and the time the law goes into effect, employers should review and redouble their immigration compliance policies because this law offers the potential for greater questioning of their employees regarding their immigration status. Employers could also face charges of harboring aliens and the impoundment of their vehicles if a worker riding in a company vehicle turns out to have lacked status and the employer is alleged to have recklessly disregarded that information.
For additional information or guidance please contact any of the lawyers in The Cavanagh Law Firm Labor, Employment and Immigration Group.
Julie A. Pace at 602.322.4046 or jpace@cavanaghlaw.com
