On June 9, 2011, Governor Robert Bentley signed into law an expansive immigration measure, the Beason-Hammon Alabama Taxpayer and Citizen Protection Act. This Act imposes penalties in several areas pertaining to the presence, activities, and employment of illegal immigrants in the state of Alabama. Its provisions become effective at different times, but the main ones for employers become effective early next year. In its statement of purpose, the Act indicates that it is designed in part:
- To prevent illegal immigrants from receiving any state or local public benefits;
- To require individuals to present proof of residency or citizenship prior to voting;
- To require businesses or employers seeking economic incentives to verify the employment eligibility of their employees;
- To prevent an unauthorized person from seeking employment in the state;
- To make it a discriminatory practice for an employer to refuse to hire a legal citizen or discharge one while retaining an unauthorized worker;
- To require the verification of legal status of every alien charged with a crime for which bail is required;
- To require public schools to determine citizenship and immigration status of students enrolling in the school; and
- To prohibit a landlord from knowingly entering into a rental agreement to harbor an illegal person.
The law follows the lead of Arizona in cracking down on illegal immigration in the state of Alabama. Proponents of the law have called it “Arizona with a Twist.” The law becomes one of the most stringent in the country as it relates to bans on employment of undocumented workers and responsibilities of employers, landlords, school officials, and law enforcement officers with respect to verification of citizenship.
IMPACT ON ALABAMA EMPLOYERS
The Act’s basic mandate is clear. No business entity, employer, or public employer shall knowingly hire or continue to employ unauthorized workers in the state. District attorneys or the Attorney General can bring tough civil enforcement actions for violations of this mandate. A court may order the termination of every unauthorized alien and may suspend business licenses and permits. Any resident of the state may petition the Attorney General to bring an enforcement action against a specific business entity or employer by means of a written petition.
The Act imposes obligations on all Alabama employers with respect to the hiring and continued employment of undocumented workers. The most notable one is the requirement that employers enroll and use E-Verify. Specifically, the Act states:
- Every business entity or employer in the state shall enroll in the federal E-Verify program by April 1, 2012 and shall verify the employment eligibility of employees through the federal program. Business entities or employees using E-Verify shall not be deemed to have violated the section of the Act related to employment.
- For employers with less than 25 employees, the Alabama Department of Homeland Security will establish and maintain an E-Verify employer agent service for those employers to use the E-Verify program to verify employment.
- Every three months the Alabama Department of Homeland Security shall request a list of all employers and business entities in the state enrolled in E-Verify and publish the list on its website.
- Employers and business entities enrolled in the program and who in good faith verify eligibility are “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 undocumented worker.
Companies who contract with the State of Alabama have additional obligations. They include:
- As a condition for the award of any contract, grant, or incentive by the state, any political subdivision thereof, or any state-funded entity, a business entity or employer shall not knowingly employ, hire, or continue to employ an unauthorized person and shall attest to such through a sworn, notarized affidavit.
- The production of documentation indicating that the employer is enrolled in E-Verify is a condition for the award of any state grant, contract, or incentive.
- Subcontractors are also required to enroll in E-Verify and attach to the sworn affidavit documentation showing evidence of enrollment.
- Consequences of noncompliance include cancellation of the contract, suspending the business license for a period of time for a first violation, and permanent revocation of license for subsequent violations.
- Subcontractors can be barred from doing business with the state and have their licenses suspended for future violations.
In addition to the foregoing requirements and restrictions on employers, the Act creates many other obligations as well. Public schools must determine students’ immigration status for example. There are many criminal provisions. The Act makes it a crime knowingly to provide transportation to an illegal immigrant. Renting to an illegal immigrant is prohibited. There are provisions addressing the creation and sale of false identification. The bill further directs law enforcement officers to arrest individuals suspected of being an illegal immigrant if the person is stopped for any other reason. The 72-page Act provides extensive details on the responsibilities of local agencies, school systems, landlords, and employers.
Alabama employers must be aware that some provisions of the Act, such as the requirements for state contractors, go into effect very soon – as early as January 1, 2012. With regard to E-Verify, those employers who are not currently enrolled in E-Verify will soon need to learn how to enroll and comply with the restrictions set forth in that program. Several states currently have some laws related to E-Verify, many of them requiring its use in contracts with the state and local governments. Alabama’s new law requires all employers to enroll. There appears to be some relief for employers with less than 25 employees who may or may not have the resources to invest in an electronic system to comply with the law. Employers should take note that there are additional requirements imposed when using E-Verify in addition to the traditional requirements for I-9 compliance found in the I-9 Handbook for Employers published by the U.S. Department of Homeland Security.
Finally, just as Arizona experienced many challenges to its law, Alabama should expect the same. In the meantime, however, Alabama employers should carefully review the requirements that will go into effect soon and prepare for increased scrutiny of hiring practices and documentation used in hiring employees.
An overview of the E-Verify program can be found here.
Previous BABC Labor and Employment articles regarding E-Verify can be found here.