Supreme Court Decision Clears The Way For States To Mandate E-Verify

On Thursday, May 26, 2011 the U.S. Supreme Court upheld an Arizona law that makes employer participation in E-Verify mandatory and which provides for the revocation of business licenses for employers that employ unauthorized workers. Chamber of Commerce of the United States v. Whiting.   Alabama, Georgia, Tennessee, and a number of other states have recently enacted similar laws, and the Supreme Court’s ruling eliminates the primary challenge to the enforceability of those laws.  It is now much more likely that the various employment-authorization mandates being imposed on employers around the country will take effect and apply to employers within those states

In 1996, the Federal government implemented E-Verify, a computerized   employment eligibility verification system which was voluntary for employers.  To promote use  of  E-Verify,  the  federal  Illegal  Immigration  Reform  and  Immigrant  Responsibility  Act granted  employers  that  confirmed  a  worker’s  eligibility  through  E-Verify  a  rebuttable presumption that the employer had not violated federal law against hiring undocumented workers.   This rebuttable presumption could be raised in court as a defense to charges of hiring unauthorized workers in violation of federal law.

In 2007, Arizona enacted the Legal Arizona Workers Act, which made the use of E-Verify mandatory for employers doing business in the state.  If an employer is found to   have intentionally employed an unauthorized alien, the employer’s authority to do business in the state could be permanently revoked. The Supreme Court’s decision holds that these statutory provisions of the Arizona law are not preempted by the federal immigration laws.

Other state legislatures across the country have also recently adopted this trend of
immigration enforcement.  As part of this trend, state laws imposing sanctions for the
employment of unauthorized aliens and imposing requirements for the use of E-Verify have become much more common. For example, Georgia’s new immigration law will require every employer with over ten employees to use E-Verify for every new hire. The Supreme Court’s decision paves the way for each state to implement its own separate and unique immigration-related hiring laws for employers to navigate. It falls now to Congress to find a way to unify and address this problem. Many experts expect a nation-wide mandate on E-Verify in the near future.

WorkPlace Partners, Inc. can help employers comply with current and expected E-Verify requirements. Contact Ann Plunkett for additional information.