Arizona Employers Feel the Heat

While undocumented residents may have gotten a reprieve from Wednesday’s ruling blocking much of Arizona’s controversial immigration law, employers in the Grand Canyon State and elsewhere around the country still have much to fear.

The reason is a statute that already exists on the state books known as the Legal Arizona Workers’ Act — a law that was enacted in 2008 but still faces legal challenges. The Arizona Chamber of Commerce and Industry, a number of other state trade associations and the U.S. Chamber of Commerce are mounting a legal challenge to the law that is set to go before the U.S. Supreme Court within the next year.

The high court already has agreed to hear the case, and its ruling could have far-reaching effects on businesses throughout the U.S. If the law is upheld, Arizona employers face the prospect of future local and state raids if suspected of hiring undocumented workers. That could reach to other parts of the country if states become emboldened by the law.
“Every business is at risk,” said David Selden, partner in Phoenix’s Cavanagh Law Firm, which specializes in employment law. Selden represents the Arizona Chamber of Commerce and Industry and a number of other appellants in the case.

The act, also known as LAWA, was considered one of the toughest immigration statutes ever passed by a state until this year’s controversial measure known in Arizona as Senate Bill 1070, or SB 1070, was passed.

LAWA was signed into law by former Arizona Gov. Janet Napolitano, now President Barack Obama’s Homeland Security Secretary.

Amendments to that statute were included in SB 1070 and left untouched Wednesday by U.S. District Court Judge Susan Bolton as she placed a preliminary injunction on the controversial law that was passed by the Arizona Legislature earlier this year.

If anything, SB 1070 aids employers, experts say. The amendments to LAWA that are included in SB 1070 contain provisions that prohibit authorities from entrapping employers.

But LAWA imposes a virtual “death penalty” on businesses that knowingly or intentionally hire illegal immigrants. Companies can have whatever relevant local licenses they hold suspended for the first violation of the law, and permanently revoked on the second violation.

Employers say the statute could unfairly target those who are strict about complying with the rules.

“We’re not doing that. That’s not what we’re in this for,” said Todd Landfried, spokesman for the Arizona Employers for Immigration Reform.

Though the law has been on the books for 2 1/2 years, enforcement has been spotty. Reports say that all but three of Arizona’s 15 counties have yet to take legal action against any businesses. In Phoenix’s Maricopa County, where the statute is most strictly enforced, only three businesses have been the subject of complaints despite dozens of raids.
Still, businesses could be under the gun should future state and local authorities get more aggressive in enforcing the law, Selden says.
“The problem that business has is they don’t have effective tools to check compliance,” Selden said.
Evelyn Cruz, a professor at Arizona State University’s College of Law, says that the current system in which local authorities can conduct raids if a business is suspected of hiring undocumented workers can be onerous to some companies. Instead of going in and asking for records, all the workers at a company can be detained for several hours while authorities weed out those who are here illegally.

“It’s a bit like a fishing expedition,” she said, adding that employers are ill-equipped to keep up with the statute’s strict provisions. Monitoring their work force to make sure their companies are in compliance with LAWA could be difficult.
“They may be asked to racially profile their employees, which is illegal,” she said.
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