E-Verify and the Supreme Court Ruling on the Arizona Legal Workers Act

In response to the recent United States Supreme Court Ruling to uphold the 2007 Legal Arizona Workers Act, the Los Angeles Times has issued an editorial saying that you cannot rely on E-Verify or the I-9 Background Search.   The Arizona Law stipulates that employers who hire undocumented or illegal workers will be penalized for doing so and that the second offense may result in the revocation of the errant company's business license.

Since 2007 when the bill was first put into law, all Arizona Employers must utilize the E-Verify or I-9 search as part of their employment screening program.  This background check is also mandated for all federal contractors.  Failure to do so could result in the company losing its federal contract.

The issues brought to bear with the Supreme Court ruling was whether the Arizona Law illegally superseded the Federal Laws regarding illegal or undocumented workers.   The Supreme Court ruled in favor of the Arizona statue  in a five to three vote .  According to the article in the Los Angeles Times, "Chief Justice John G. Roberts, Jr, said Arizona's licensing law "falls well within the confines of the authority Congress chose to leave to the states," rebuffing challenges from the U.S. Chamber of Commerce, the Obama administration and civil rights groups.

Then Governor Janet Napolitano had first signed the Arizona Legal Workers Act into law in 2007.   Thirty odd states have similar laws on the books and the Supreme Court ruling will in all probability affect the disposition of these statutes.

In its editorial, the Los Angeles Times stipulated, "The problem is that the law relies on E-Verify, which isn't ready for prime time......Conservative estimates put the program's error rate at just under 1% — meaning that one out of every 100 legal job applicants could be found ineligible to work....The reality is that the error rate may be much higher. Consider that in 2008, Intel Corp. reported that just over 12% of its workers were wrongly tagged as ineligible, according to the Migration Policy Center in Washington....a survey by Los Angeles County of employees found an error rate of 2.7 in 2008 and 2.0 in 2009, according to a report submitted to the Board of Supervisors. The error rate is especially high in cities with large immigrant communities."

Nevertheless, Arizona employers and all federal contractors are mandated to conduct the E-Verify.  As a designated agent for the E-Verify, we believe it has its merits.  There are administrative difficulties, with the ineligible worker having eight days to respond to the denial.  The employer must go over the employee's rights and read their rights in their native language, if the employee does not understand English.  This can be time consuming and taxing.

More importantly, the employer cannot run the E-Verify unless the employer formally offers the job to the candidate.  Only then can they conduct the I-9.   The E-Verify cannot be used as a background check for pre-employment screening.  This is why we encourage our clients to first run the Social Security Trace.  The Social Security Trace as a background check will for the most part tell you if your job applicant is applying for the job under his legitimate Social Security Number.  And  if there is a discrepancy, with a bit of research, a CRA can pretty much tell if the SSN is legitimate and who it actually belongs to.

The Social Security Trace can be used for pre-employment screening purposes.  It may help weed out the ineligible workers from those who are eligible to work in the United States.

The Los Angeles Time Editorial claims the Supreme Court ruling and the E-Verify system doesn't fix the overall problem.  The editorial calls for immigration reform.   There's a debate that still has some very long legs.  But I will leave that to others.   Mainly, the purpose here is to encourage employers to protect themselves against possible fines, business closure, and the loss of federal contracts due to their hiring ineligible workers.   No fun there.   And to be sure, with the Supreme Court ruling other states that already have similar statutes in play will vote in favor of that similar to the Legal Arizona Workers Act.  It is a changing paradigm.  And as such,  considering fines, liability issues, and possible business closure, hiring undocumented workers may prove far more expensive than employees with the legal right to work in the United States.

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