Thursday, June 9, 2011
Summary of Business Provisions of 2011 Alabama Immigration Act
By: Tommy Eden, Attorney
Will Cunningham, Attorney
On June 9, 2011, Alabama Governor Robert Bentley signed into law the Beason-Hammon Alabama Taxpayer and Citizen Protection Act (the “Act”). The Alabama Legislature passed HB 56 on June 1; a 70 page document which makes broad changes to the way Alabama deals with illegal immigrants and unauthorized aliens. Several of the new provisions govern private businesses and employers and impose significant new obligations, as detailed below. Unless otherwise stated, all citations are to the Act.
We are pleased to provide this legal update to our clients and friends. At the end of this update see Common Sense Counsel which list steps all Alabama employers should start consider taking to prepare themselves for these mandated changes.
SECTION 15(a): EMPLOYMENT OF ALIENSSection 15 of the Act governs the employment of unauthorized aliens within the state of Alabama. Effective April 1, 2012, “[n]o business entity, employer, or public employer shall knowingly employ, hire for employment, or continue to employ an unauthorized alien to perform work within the State of Alabama.” SECTION 15(a) (emphasis added). To knowingly employ, hire for employment or continue to employ an unauthorized alien is to do so in violation of the Federal procedures set forth in 8 U.S.C. § 1324a(b)(1)-(3) for employee verification.
An “unauthorized alien” is any person who is not a citizen or national of the United States and who is not authorized to work in the United States pursuant to federal law. SECTION 3(1), (16). A “business entity” is any person or group of persons “engaging in any activity, enterprise, profession, or occupation for gain, benefit, advantage, or livelihood, whether for profit or not for profit.” SECTION 3(2). This includes self-employed persons, as well as traditional business entities. An “employer” encompasses any person or entity that employs another person in the State of Alabama, with the exception of a resident hiring domestic laborers. SECTION 3(5).
Section 15 expressly excludes “the relationship between a party and the employees of an independent contractor performing work for the party and does not apply to casual domestic labor performed within a household.” SECTION 15(l).
SECTION 15(b): E-VERIFY Each and every business entity or employer must enroll in E-Verify and use that system to verify the employment eligibility of every employee. SECTION 15(b). E-Verify refers to the federal electronic employment authorization verification system established by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, 8 U.S.C. § 1324a, and operated by the United States Department of Homeland Security. SECTION 3(7). The Alabama Department of Homeland Security shall create an E-Verify “employer agent service” for use by any business entity or employer with 25 or fewer employees. SECTION 26.
E-Verify provides a safe harbor so that an employer who uses the E-Verify system for each employee “shall not be deemed to have violated [Section 15] with respect to the employment of that employee.” Id. Furthermore, 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.” SECTION 26(d).
SECTION 15(c)-(f): PENALTIES Upon the first violation of Section 15(a) by a business entity or employer, a court shall do the following:
(1) order the termination of every unauthorized alien by the business entity or employer;
(2) place the business entity or employer on probation for three years, during which time the entity or employer shall file quarterly reports to the local DA regarding each new employee;
(3) order the business entity or employer file a signed, sworn affidavit with the local DA stating that every unauthorized alien has been terminated and no new unauthorized aliens will be knowingly or intentionally employed in the State of Alabama; and,
(4) direct the appropriate governing body to suspend the business license and permits of the business entity or employer for up to 10 business days in the location where the unauthorized alien worked;
SECTION 15(c). Before the business license or permits may be reinstated, the business entity or employer must submit a signed, sworn affidavit stating that it is in compliance, as well as a copy of its enrollment in the E-Verify program. SECTION 15(d)(1).
Note that a business entity or employer that terminates an employee to comply with the requirements of Section 15 is not liable for claims made by the terminated employee, “provided that such termination is made without regard to race, ethnicity, or national origin of the employee and that such termination is consistent with the anti-discrimination laws of this state and the United States.” SECTION 15(i).
A second violation requires the immediate revocation of all business licenses and permits for the location where the unauthorized alien performed work. SECTION 15(e). A subsequent violation shall result in the permanent suspension of the business license and permits throughout the state. SECTION 15(f).
By statute, there is an affirmative defense of entrapment by law enforcement officers. See SECTION 15(k). This defense is a last resort and is not recommended.
SECTION 15(k): PETITIONS TO ATTORNEY GENERAL Although normally the domain of local district attorneys, the Attorney General may bring a civil complaint for enforcement of the employment laws. SECTION 15(k). Any resident may petition the AG to bring an enforcement action by signed, written petition that alleges the specific violators, the actions constituting a violation, and the date and location of the violation. SECTION 15(k)(1). A petition alleging violation based on national origin, ethnicity or race is invalid. SECTION 15(k)(2).
SECTION 16: TAX DEDUCTIONS A business entity or employer may not deduct from its state income or business taxes any wages, compensation or remuneration of any kind, whether monetary or otherwise, “for the performance of services paid to an unauthorized alien.” SECTION 16(a). A business entity or employer who knowingly fails to comply with subsection (a) “shall be liable for a penalty equal to 10 times the business expense deduction claimed in violation of subsection (a).” SECTION 16(b).
SECTION 17: CAUSE OF ACTION FOR ALIEN DISCRIMINATION A business entity or employer may be liable for (i) failure to hire a job applicant who is a United States citizen or who is an alien authorized to work in the United States as defined in 8 U.S.C. § 1324a(h)(3) or (ii) discharge of an employee who is a citizen or authorized alien while retaining any employee who the business entity or employer knows, or reasonably should have known, is an unauthorized alien. SECTION 17(a).
Damages in a civil action for discrimination under Section 17 are limited to compensatory relief, court costs and reasonable attorney’s fees (up to the amount of the winning party’s own attorney’s fees). SECTION 17(b)-(c). No civil or criminal sanctions are applicable. SECTION 17(b).
SECTION 27: NO ENFORCEMENT OF
CONTRACTS WITH UNLAWFUL ALIENSNo 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, if
(1) the party had direct or constructive knowledge that the alien was unlawfully present in the United States at the time the contract was entered into; and,
(2) the performance of the contract required the alien to remain unlawfully present in the United States for more than 24 hours after the time the contract was entered into or performance could not reasonably be expected to occur without such remaining.
SECTION 27(a). Several exceptions exist to this rule: (a) contracts for lodging for one night; (b) contracts for the purchase of food to be consumed by the alien; (c) contracts for medical services; and (d) contracts for transportation to facilitate the return of the alien back to his or her country of origin. SECTION 27(b).
MISCELLANEOUS CRIMINAL SECTIONSSection 11 of the Act makes it illegal to stop a vehicle on a street, roadway or highway “to attempt to hire or hire and pick up passengers for work at a different location if the motor vehicle blocks or impedes the normal movement of traffic.” SECTION 11(f). Similarly, it will be illegal for a person to enter such a vehicle in order to be hired. SECTION 131(g). Violations shall be a Class C misdemeanor and subject to a fine of not more than $500. SECTION 13(h).
Section 13 makes it illegal to “conceal, harbor, or shield . . . an alien from detection in any place in this state, including any building and any means of transportation, if the person knows or recklessly disregards the fact that the alien has come to, has entered, or remains in the United States in violation of federal law.” SECTION 13(a)(1) (emphasis added). Similarly, it is illegal to induce an alien to come to or reside in Alabama if the person knows or recklessly disregards the fact that the alien will be in violation of federal law. SECTION 13(a)(2).
It will be illegal to transport an alien “in furtherance of the unlawful presence of the alien in the United States, knowingly or in reckless disregard to the fact that the alien has come to, entered, or remained in the United States in violation of federal law.” SECTION 13(a)(3).
It will be illegal to harbor an unlawful alien “by entering into a rental agreement . . . with an alien to provide accommodations, if the person knows or recklessly disregards the fact that the alien is unlawfully present in the United States.” SECTION 13(a)94).
Violation of any provision of Section 13 is a Class A misdemeanor for each unlawfully present alien. SECTION 13(b). If the violation involves 10 or more unlawful aliens, the violation shall be a Class C felony. SECTION 13(c).
A solicitation, attempt or conspiracy to violate any criminal provision of the Act shall have the same penalty as a violation of the Act. SECTION 25(a).
Common Sense Counsel: all Alabama Employers should start getting ready today by taking the following steps now:
• Enroll in E-Verify at https://e-verify.uscis.gov/enroll/StartPage.aspx?JS=YES
• “Dos and Don’t Training” on the Alabama Immigration Act for all your supervisors and management level employees;
• E-Verify is an employer’s only get out of jail card under the Alabama Immigration Act and with Immigration Compliance and Enforcement (ICE);
• Schedule I-9 Supervisor Training because the E-Verify system is only as good as the information collected on your I-9 forms;
• Put an E-Verify policy in your employee handbook;
• Make sure you are using the latest version of Form 1-9; and
• Have an outside audit done of your Form I-9 and Immigration Practices.
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 and also to the Governor’s Commission in 2008. He would like to thank Will Cunningham, an Associate at Capell & Howard, for his help in summarizing the Bill. Tommy can be contacted at firstname.lastname@example.org or 334-501-1540.