A federal judge is raising some last-minute questions about Arizona’s new employer sanctions law that could provide the grounds for him to declare it unconstitutional.
A hearing is set today on the controversial law, and on Tuesday U.S. District Court Judge Neil Wake told attorneys to explain to him what appeal rights — if any — companies have if a federal government database shows a worker is in the country illegally.
The question is crucial to the future of the state statute. That’s because the U.S. Constitution requires all laws to protect the “due process” rights of those accused of breaking them to prove they are innocent.
Even if Wake upholds the validity of the law, he might limit its scope. He also is asking the lawyers for both sides of the argument whether a company can be penalized for having an undocumented worker already on its payroll before the new law took effect Jan. 1.
Lou Moffa Jr., one of the lead attorneys for businesses challenging the statute, said Wake’s questions suggest the judge now realizes there are flaws in the law.
The statute permits a state judge to suspend or revoke all licenses of any firm found guilty of knowingly or intentionally hiring those not authorized to work in this country. Another provision requires companies to verify a new worker’s legal status through the federal government’s E-Verify program.
Moffa said one problem is that state judges, reviewing complaints against employers, cannot legally determine themselves if a worker is in this country legally.
Instead, judges can rely only on information from a separate federal database of authorized workers. If that database says the worker is not legal, a judge has no choice but to find the company guilty.
Moffa said Wake’s question goes directly to the contention of employers that there is no way for a company to appeal the findings of either database, even if they have actual evidence the worker is, in fact, a U.S. citizen or in this country legally.
The issue of whether companies can be prosecuted for undocumented workers already on their payroll on Jan. 1 goes to the related question of how employers can protect themselves.
Federal regulations allow firms to use the E-Verify system solely to check the legal status of new workers, specifically forbidding database checks of existing employees. That means a company has no way of using the system — and gaining that “rebuttable presumption” of innocence — to ensure that its existing workforce is all legal.
Attorneys for the state acknowledge that.
But they also point out that any company which has accurately filled out the federal forms required when hiring new workers is entitled to an “affirmative defense” if they are charged with violating the new state law.
That essentially gives them a claim to present to the court that they thought they were complying with the law, even if it turns out the employee was undocumented.
The business groups and some organizations which provide services to Hispanics and others also contend the statute is unconstitutional because only the federal government is permitted to penalize firms for hiring undocumented workers.