7 DO’S and DON’TS for Employers under the Alabama Immigration Act – Updated,
By: Tommy Eden, Attorney • Capell & Howard, P.C
On June 9, 2011, Alabama Governor Robert Bentley signed into law the Beason-Hammon Alabama Taxpayer and Citizen Protection Act (the Act 2011-535 “Act”) and on September 28, 2011 U.S. Federal District Judge Sharron Blackburn temporarily enjoined (stopped from going into effect) certain portions of the Act. On October 14, 2011 the 11th Circuit Court of Appeals enjoined two additional provisions. Almost all of the provisions affecting Alabama employers remain in place as of this publication and impose significant new employer-related compliance obligations. At the core of the Act is compliance with the Federal Form I-9 requirements under the Immigration Reform Control Act of 1986 and enrollment in the Federal E-Verify program. The following list is a Do’s and Don’ts summary of the employer obligations updated following the 11th Circuit Court of Appeals decision of October 14, 2011:
1. DON’T knowingly employ, hire for employment, or continue to employ an unauthorized alien to perform work within the State of Alabama. Effective January 1, 2011, all Alabama business entities seeking to contract with the State of Alabama, or any political subdivision thereof (City, County, public authority, etc), or “transact business” with any of these same entities, should prepare now to verify the status of every new employee through the federal E-Verify procedures, secure documentation that they are in fact a business entity (most likely a record from the Alabama Secretary of State), fire unauthorized aliens and have an immigration compliance check-up conducted to allow the business to provide a good faith affidavit of immigration compliance [Sections 9, 15, 26 and 30 of the Act] to the political subdivisions it seeks to contract with or “transact business” with. Hopefully, a central filing by a business entity with the Alabama Secretary of State or Alabama Department of Homeland Security will allow for this to be an orderly process and no later than 90 days following the effective date of the Act all Alabama employers enrolled in E-Verify will have their name listed on a state website [Section 26 of the Act].
2. Do enroll in E-Verify. Effective April 1, 2012, every Alabama business entity or employer should be enrolled in E-Verify to verify the employment eligibility of every new hire in the State of Alabama. E-Verify provides a safe harbor so that an employer who uses the E-Verify system “shall not be deemed to have violated [Section 15 of the Act] with respect to the employment of that employee.” A business entity or employer that uses E-Verify to verify the status of an employee in good faith “and acts in conformity with all applicable federal statutes and regulations is immune from liability under Alabama law for any action by an employee for wrongful discharge or retaliation based on a notification from the E-Verify program that the employee is an unauthorized alien.” Three violations involving employment of unauthorized aliens can result in permanent revocation of all licenses and permits to do business throughout the State of Alabama.
3. DO schedule Form I-9 Supervisor Training. The federal E-Verify system is only as accurate as the information collected on form I-9. Also, do put an E-Verify policy in your employee handbook and make sure that you are using the latest version of Form 1-9.
4. DO have an outside Immigration Compliance Check-up done of your Form I-9s and Immigration Practices. E-Verify is an employer’s only get out of jail card with Immigration Compliance and Enforcement (ICE) and the only safe harbor under the Alabama Immigration Act. Millions of dollars of ICE fines and prison sentences have been levied against employers that are out of compliance. Effective January 1, 2012 every business entity, employer and subcontractor that contracts with any public entity in the State of Alabama will have to prove by affidavit, under penalty of perjury, that they are enrolled in EVerify and have a good faith belief that they are currently only employing those legally eligible to work in the United States. [Section 9 of the Act]. Two violations by an Alabama employer can result in permanent revocation of all licenses and permits to do business throughout the State of Alabama. Expect businesses to mandate by contract such affidavits as well.
5. DO properly terminate any employee if you become aware of their unlawful status. The employer could face severe business penalties involving probation, suspension and permanent revocation of Alabama business licenses and permits [Sections 9 and 15 of the Act].
6. DON’T enter into contracts with unauthorized aliens. The Act provides that no court shall enforce the terms of, or otherwise regard as valid, any contract between a party and an alien unlawfully present in the United States [Section 27 of the Act]. However, on October 25, 2011, Jefferson County Circuit Judge Scott Vowell found this provision violated Section 95 of Alabama Construction (prohibits impairing of contracts) in that he found the law, as applied to a contract which predated the Alabama Immigration Act, was unconstitutional.
7. DO have employees carry ID proving their lawful status in the U.S. Significantly, the 11th Circuit left in place Section 18 of the Act (drivers of motor vehicles to have their drivers licenses in their possession at all times or subject to detention to verify citizenship); and Section 30 (must prove lawful status to enter into any “business transaction” with public entity, i.e. business license, license plate, drivers license renewal, non driver ID card, etc.). An unexpired Alabama Drivers License or Nondrivers Identification Card issued by the Alabama Division of Motor Vehicles is sufficient verification of lawful status. Placing in your job description that possession of a valid driver’s license as an essential job qualification may be considered to ensure that your employees will not be detained while driving on company business. If you would like to schedule an Immigration Compliance Check-up of your Form I-9s and Immigration Practices, please contact firstname.lastname@example.org. CSB will be performing these services in conjunction with Capell & Howard, P.C.
About the author: Tommy Eden is an attorney with Capell & Howard, P.C. and a member of the ABA Section of Labor and Employment Law, and presented throughout the State of Alabama on Immigration Workplace Compliance in 2011. Tommy can be contacted at email@example.com or 334-241-8030. A more detailed legal summary for employers of the Act, and other links and resources, is at www.immigrationalabamalaw.com
This Do’s and Don’ts summary is for educational purposes only and does not constitute legal advice. “No representation is made that the quality of legal services to be performed is greater than the quality of legal services performed by other lawyers.”