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Friday, August 5, 2011

Legal Challenges to New Immigration Law


Alabama@Work
By Tommy Eden, Attorney


Alabama’s new immigration law passed the Legislature on June 9th and has been described by opponents and supporters as the toughest crackdown on illegal immigration in the country, which has opened the State up to multiple lawsuits. The U.S. Justice Department filed lawsuit filed last week to block some provisions of Alabama’s immigration law has been consolidated with a similar suit filed by the Hispanic Interest Coalition of Alabama, and a third case filed by bishops of three religious denominations. All three suits seek to stop Alabama’s immigration law from taking effect on September 1, 2011, and are set for hearing at 9:00am on August 24, 2011 before U.S. District Judge Sharon Blackburn in Birmingham. Mexico and 15 other Central and South American nations have also filed motions to overturn the state law.

Portions of the Alabama Immigration Act that are not directly challenged in these current lawsuits are those that will most directly affect Alabama employers. In all likelihood these requirement and penalties will stand based upon prior legal precedent in the four other states where this battle has already been fought, and the U.S. Supreme Court.

The Alabama Act mandates that all Alabama employers use the federal E-Verify system and prohibits employers from “knowingly” employing illegal immigrants. “Knowingly” is defined to include both actual knowledge and constructive knowledge. The provisions pertaining to employers set harsh penalties for non compliance.

First, beginning January 1, 2012, any business that “contracts” with the state of Alabama, or any county, city, or political subdivision that sells any product or service will nave to provide evidence it uses E-Verify. If it then knowingly employs an illegal alien its contract can be voided and business license suspended for 60 days after the first violation. After a second violation, a contactor’s business license can be revoked permanently.

Second, beginning April 1, 2012, any Alabama employer who is found to have knowingly employed an illegal alien faces a progressive set of penalties beginning with a 10 day suspension and a 3 year probationary period during which quarterly reports must be filed by the employer with the District Attorney. On the third violation all business licenses and permits in the State can be revoked permanently, barring the employer from ever doing business in Alabama. The employer can also be sued by legal applicants not hired.

Common Sense Counsel:
The new immigration law places an enormous burden on the employers of Alabama to be pro-active in verifying employment status using the E-Verify system and being able to provide written proof that they have done so. Alabama employers should look for their compliance solution today.

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 2008. He can be contacted at tme@chlaw.com or 334-501-1540.