Labor & Employment Law

SG urges certiorari on Arizona's law sanctioning employers who hire unauthorized aliens

The Solicitor General filed a US Supreme Court brief [here] today recommending that certiorari be granted in Chamber of Commerce of the United States v. Candelaria. [Details, all briefs]

The recommendation is to grant certiorari as to the question of whether Arizona's statute sanctioning employers who hire unauthorized aliens is preempted by federal law. However, the recommendation is to not grant certiorari as to Arizona's requirement that employers use E-Verify.

Arizona's Legal Arizona Workers Act allows the superior courts of Arizona to suspend or revoke the business licenses of employers who knowingly or intentionally hire unauthorized aliens. The appropriate county attorney is charged with bringing an action against the employer in superior court. The Act uses IRCA?s definition of "unauthorized alien," and requires that the court use the federal government?s determination of the employee?s lawful status. The Act makes participation in E-Verify mandatory for all employers, although it provides no penalty for violation of the requirement. The Act mandates a graduated series of sanctions for violations.

The 9th Circuit held that the Arizona Act is neither expressly nor impliedly preempted by federal law, and does not violate due process.

Official Questions Presented in the petition for certiorari:

1. Whether an Arizona statute that imposes sanctions on employers who hire unauthorized aliens is invalid under a federal statute that expressly "preempt[s] any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens." 8 U.S.C. § 1324a(h)(2).

2. Whether the Arizona statute, which requires all employers to participate in a federal electronic employment verification system, is preempted by a federal law that specifically makes that system voluntary. 8 U.S.C. § 1324a note.

3. Whether the Arizona statute is impliedly preempted because it undermines the "comprehensive scheme" that Congress created to regulate the employment of aliens. Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 147 (2002).

Full post as published by Ross' Employment Law Blog on May 28, 2010 (boomark / email).