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Friday, June 10, 2011

Top 10 DO’S and DON’T for Employers under the Alabama Immigration Act


Alabama@Work
By: Tommy Eden, Attorney

On June 9, 2011, Alabama Governor Robert Bentley signed into law the Beason-Hammon Alabama Taxpayer and Citizen Protection Act (the “Act”). This is a sweeping Act to crack down on illegal immigrants that both supporters and opponents call the toughest of its kind in the country, going well beyond a 2010 Arizona law that caused an uproar and was appealed to the U.S. Supreme Court. The Alabama Act is generally effective September 1, 2011. Several of the new provisions govern employers and impose significant new obligations. The following list is a Do’s and Don’t summary of the employer obligations contained in the 70 page Act:

1. Don’t knowingly employ, hire for employment, or continue to employ an unauthorized alien to perform work within the State of Alabama.
You must verify the status of every new employee through the federal E-Verify procedures and fire unauthorized aliens.

2. Do enroll in E-Verify. Each and every business entity or employer must enroll in E-Verify to verify the employment eligibility of every new employee no later than April 1, 2012. 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] 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.” Do schedule Form I-9 Supervisor Training because the E-Verify system is only as good as the information collected. Do put an E-Verify policy in your employee handbook and make sure you are using the latest version of Form 1-9. Do have an outside audit 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.

3. Do terminate any employee if you become aware of their illegal status. The employer could face severe penalties involving probation and suspension of business license.

4. Don’t deduct from state income or business taxes any wages, compensation or remuneration of any kind, whether monetary or otherwise, for services paid to an unauthorized alien. A business entity or employer who knowingly fails to comply will be liable for a penalty equal to 10 times the business expense deduction claimed.

5. Don’t discriminate. An employer may be liable for failure to hire a job applicant who is a United States citizen, or who is an alien authorized to work in the United States, while retaining any employee who the employer knows, or reasonably should have known, is an unauthorized alien. The employer can be sued by the unsuccessful applicant in an Alabama civil action for discrimination under Section 17 and awarded compensatory relief, court costs and reasonable attorney’s fees.

6. Don’t enter into contracts with illegal 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.

7. Don’t pick up day labor in your vehicle. 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.” This applies regardless of citizenship or alien status.

8. Don’t house an illegal alien. It is illegal to “conceal, harbor, or shield” an alien from detection in any place, including any building or vehicles, if the person knows or recklessly disregards that the alien is illegal in United States. 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.

9. Don’t transport an illegal alien. 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.”

10. Don’t rent to an illegal alien. It is illegal to harbor an unlawful alien by entering into a rental agreement with the alien, if the person knows or recklessly disregards the fact that the alien is in the United States illegally.

Alabama Immigration Law Does and Don't PPT on slideshare on my Linkedin profile page. Any Associations who need help can contact me

Tommy Eden is a Lee County native and 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 2011. Tommy can be contacted at tme@chlaw.com or 334-501-1540 and a more detailed summary of the Act is at www.alabamahrlaw.com