Keeping it legal
|Louisiana has passed two bills aimed at discouraging businesses from hiring undocumented workers, with significant potential penalties for employers.|
In April, Arizona enacted a tough anti-illegal immigration law, making the failure to carry documents that prove legal status a crime and giving police broad authority to detain people they suspect are in this country illegally.
A law passed in Alabama, temporarily blocked in August by a federal judge, contains harsh penalties for businesses that hire illegal workers, including the permanent revocation of licenses and permits.
Louisiana legislators passed two bills in the past session aimed at discouraging businesses from hiring undocumented workers. While neither grabbed headlines the way that the Arizona and Alabama laws did, the bills contain significant potential penalties for employers.
Act 402, authored by Rep. Kirk Talbot, a River Ridge Republican, and Sen. Elbert Guillory, an Opelousas Democrat, applies to all Louisiana employers. Act 376, authored by Rep. John Bel Edwards, an Amite Democrat, applies only to businesses seeking to work with the state. The latter law requires any contractor or subcontractor bidding on any public job to sign a sworn affidavit attesting that they've used the federal E-Verify system to ensure all of their Louisiana employees are legal.
"If we can't agree on anything else [about immigration issues]," Edwards says, "we should be able to agree that taxpayer dollars should not go to pay the wages of illegal workers."
The issue gains urgency in a tough economy, he says, when so many citizens are unemployed. Louisiana might not host as many migrant workers as border states, but Edwards mentions the 18 undocumented workers taken into custody in March from the North Oaks Livingston Parish Medical Complex building site in Satsuma to demonstrate that Louisiana has a real problem.
E-Verify is a Web-based, voluntary, free federal system by which employers can check if new hires are allowed to work in this country legally. It's intended to be used after someone has agreed to take a job, and only after that person has completed the standard Form I-9.
The federal government explicitly says E-Verify is intended to be used for new hires, not existing employees. The Louisiana law seems to conflict with federal rules by requiring online verification of all employees. Edwards admits he was unaware of that limiting provision in the federal rules when he supported the state act.
"We can't comply with the state law, because federal rules prohibit us from E-Verifying current employees," says Ken Naquin, CEO of Louisiana Associated General Contractors, an industry group.
Contractors who run afoul of the state law can be thrown off the job and forced to pay the state the difference between their bid and the second-lowest bidder, and can even be banned from doing business with the state for three years.
"Quite honestly, we can do a lot worse things on a job than not E-Verify," Naquin says. "We might be fined by the state government or the federal government, but we don't lose the contract."
Jerry "Jay" Stovall Jr., an attorney with Breazeale, Sachse & Wilson and legislative director for the Greater Baton Rouge Society of Human Resource Managers, says the bills sailed through the Legislature.
"For construction guys, for large contractors with the state, they've got a very deep downside under [Act] 376," he says. "That causes you some heartburn."
Just think if Performance Contractors, The Shaw Group or Turner Industries lost the right to do business with the state.
"It's not likely," Stovall says, "but it could happen."
Naquin says he met with Gov. Bobby Jindal's staff to see if the governor could issue an executive order delaying enforcement of Act 376, scheduled to go into effect Jan. 1, until the Legislature could clarify the language next year. He was told the governor could only do so in an emergency.
So Naquin and the LAGC are turning to the courts. They plan to ask for a declaratory judgment as to whether public contractors can comply with the state law without violating federal law. If the answer is no, they want the court to suspend the law until the next legislative session. Naquin says they expect to file with the 19th Judicial District Court during the first week of October.
Naquin says Act 402, which applies to every company in the state, appears to comply with federal requirements. Employers can be fined $500 for a first violation, $1,000 for a second and $2,500 for a third, per illegal alien employed.
Ed Hardin, a labor and employment attorney with Kean Miller, says Act 402, which went into effect Aug. 15, doesn't create significant new requirements for employers since it already was against the law to hire people who are in the country illegally.
Instead, Act 402 seeks to encourage employers to use E-Verify. Hardin recommends employers use E-Verify for new hires and continue to follow the Form I-9 procedure, though he adds the caveat that the state law allows the use of a smaller range of identification documents than does federal I-9 law.
Under 402, a U.S. birth certificate or certified birth card, naturalization certificate, certificate of citizenship, alien registration card or U.S. immigration form I-94 with an "employment authorized" stamp must be presented.
"E-Verify isn't necessarily a magic bullet," Hardin says.
The system has been known to spit out false positives, which might be why the feds have been wary of making the system mandatory for everyone. But under the new state laws, an employer who uses E-Verify is presumed to have acted in good faith and isn't responsible for any glitches in the system.
Hardin and Stovall say the state laws probably could use some clarification. Stovall says the HR director of a major local construction company told him they plan to go ahead and E-Verify all employees.
Naquin says 21 states have passed E-Verify laws, but other states only apply those laws to new hires, thereby staying compatible with federal policy.
"This is what happens when Washington doesn't set policy and you're going state by state," Naquin says. "Where is Washington on this?"
On Sept. 21, U.S. House Republicans pushed through the Judiciary Committee a measure that would require all businesses to use E-Verify. According to The Washington Times, Democrats fighting the bill accused Republicans of offering "amnesty" to some illegal immigrant farmworkers; Republicans, typically champions of states' rights, defended their bill, which would override existing state laws.
The newspaper says the partisan divide makes it unlikely any bill will clear Congress in the near future.
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