Unemployment Benefits for Military Spouses Who Relocate: In 2012, Alabama amended its unemployment benefits provision to allow spouses of active duty members of the military who receive change of station orders, activation orders, or unit deployment orders to receive unemployment benefits if they voluntarily quit working in order to relocate. Section 25-4-78 of the Alabama Code describes the circumstances that disqualify an individualfrom total or partial unemployment benefits. One such disqualifying circumstance is voluntarily quitting work without good cause. However, the Alabama Legislature created an exception for individuals who voluntarily quit working in order to relocate as a result of a spouse’s military assignment: “[A]n individual shall not be disqualified if he or she left his or her employment to permanently relocate as a result of his or her active duty military-connected spouse’s permanent change of station orders, activation orders, or unit deployment orders.”
Immigration: In May 2012, Governor Bentley signed legislation amending HB 56, Alabama’s controversial immigration legislation that passed in 2011. Two sections of HB56 apply directly to employers: Section 15, which was not amended, and Section 9, which was amended significantly. Each section is discussed below.
Section 15 of HB56 applies to both public and private employers and became effective on April 1, 2012. Section 15 has two basic components. First, it makes it unlawful for an employer to “knowingly employ, hire for employment, or continue to employ an unauthorized alien to perform work within the State of Alabama.” Employers who violate this provision face stiff penalties, ranging from temporary suspension of business licenses and permits to permanent revocation of business licenses and permits throughout the State. Second, it requires all employers to enroll in the federal web-based E-Verify system and to use it to verify newly hired employees’ work authorization. An employer can establish an affirmative defense to a claim that it knowingly hired or employed an unauthorized alien if it can establish that it complied in good faith with the federally imposed Form I-9 obligations. Additionally, HB56 provides an E-Verify “safe harbor” defense. An employer that uses E-Verify to verify the work authorization of an employee “shall not be deemed to have violated [Section 15] with respect to the employment of that employee.” The 2012 amendments did not change Section 15.
By contrast, Section 9 was amended significantly. Section 9 applies only to state contractors and became effective on January 1, 2012. The original version of Section 9 required an employer, as a condition for the award of a contract, grant, or incentive from the state, a political subdivision of the state, or a state-funded entity, to (1) enroll in E-Verify and (2) attest through a sworn affidavit that it had not knowingly hired, employed, or continued to employ an unauthorized alien and that it had enrolled in E-Verify. The original version also contained severe penalty provisions that included the termination of the contract as well as the suspension or loss of business licenses and permits. The 2012 amendments to Section 9 accomplished, in pertinent part, the following:
- Clarified that contractors need only E-Verify employees within Alabama.
- Eliminated the affidavit requirements altogether.
- Provided that a contractor is not liable for contracting with a direct subcontractor who violates Section 9 unless the contractor knew or should have known that the direct subcontractor was in violation of Section 9.
- Clarified that businesses that only receive compensation for goods or services provided to the State are not “state-funded entities.”
- Added a requirement that contracts or agreements to which the state, a political subdivision of the state, or a state-funded entity are a party must include a clause affirming that, for the duration of the contract, the contractor will not violate federal immigration law or knowingly employ, hire for employment, or continue to employ an unauthorized alien within Alabama. Such language is required only in contracts that are competitively bid or, if entered into by the state or a state agency, would be required to be submitted to the Contract Review Permanent Legislative Oversight Committee.
Revised the penalty scheme into three tiers:
- Violation #1: The contract may be terminated and the court must (1) order the employer to terminate the employment of all unauthorized aliens, (2) subject the employer to three years of probation and quarterly reporting requirements, and (3) require the employer to provide an affidavit stating that it has terminated the employment of all unauthorized aliens and will not knowingly or intentionally employ an unauthorized alien within Alabama. Additionally, if the court determines that the employer has a policy or practice that violates Section 9, the employer’s business licenses or permits for the location where the unauthorized work occurred must be suspended for up to 60 days.
- Violation #2: If a second violation occurs within ten years of the first violation, the contract must be terminated and the court must (1) order the employer to terminate the employment of all unauthorized aliens, (2) subject the employer to five years of probation and quarterly reporting requirements, and (3) require the employer to provide an affidavit stating that it has terminated the employment of all unauthorized aliens and will not knowingly or intentionally employ an unauthorized alien within Alabama. Additionally, if the court determines that the employer has a policy or practice that violates Section 9, the employer’s business licenses or permits for the location where the unauthorized work occurred must be suspended for at least 60 days but no more than 120 days. However, if a second violation occurs more than ten years after the first violation, the employer is subject to the same penalty as a first violation but it is still considered a second violation.
- Violation #3: The contract must be terminated and all of the employer’s business licenses or permits throughout the State are permanently revoked.
- Clarified that all procedural mechanisms or legal defenses included in the E-Verify program can still be used by anyone who allegedly violates this section, and that any entity that has enrolled in and properly uses EVerify shall not be liable for violations of Section 9.