Arizona has enacted the nation's most aggressive legislation aimed at preventing the employment of unauthorized workers. Dubbed the "Legal Arizona Workers Act," this new law goes into effect January 1, 2008.

The new law imposes two significant requirements on all Arizona employers:

  1. It prohibits employers from intentionally or knowingly employing unauthorized workers; and
  2. It requires employers to verify the employment eligibility of newly hired employees through the federal government's Employment Eligibility Verification Program ("EEVP").

Unlike current federal immigration laws that use monetary penalties, the sanction under the Arizona law could be the permanent loss of all business licenses:

Penalties for Knowingly Employing

  • 4 Must terminate the worker(s)
  • 4 3-year probation (during which employer must file quarterly reports)
  • 4 Business licenses may be suspended for up to 10 business days.
  • 4 Must sign affidavit affirming that it has terminated all unauthorized workers and will not knowingly or intentionally employ unauthorized workers in the future (failure to file this affidavit within 3 business days after the employer is found to be in violation will result in suspension of all business licenses until it is filed)
  • 4 A second violation during the probation period results in permanent revocation of all licenses
 

Penalties for Intentionally Employing

  • 4 Must terminate the worker(s)
  • 4 5-year probation (during which employer must file quarterly reports)
  • 4 Business licenses must be suspended for at least 10 days
  • 4 Must sign affidavit affirming that it has terminated all unauthorized workers and will not knowingly or intentionally employ unauthorized workers in the future (suspended licenses will remain suspended at least until the affidavit is filed)

 

  • 4 A second violation during the probation period results in permanent revocation of all licenses

The new law provides two ways for employers to protect themselves:

  1. Use the federal government's Employment Eligibility Verification Program ("EEVP") for newly hired employees. If it turns out that an employee is not authorized to work, proof that the employer verified that worker's eligibility through EEVP creates a rebuttable presumption that the employer did not act knowingly or intentionally. Information about EEVP is available from the U.S. Citizenship and Immigration Services, (888) 464-4218 or at http://www.uscis.gov
  2. Fully comply with the I-9 documentation process for all employees. Good faith compliance with this process is an "affirmative defense" that the employer did not act knowingly or intentionally.


There is substantial uncertainty and confusion concerning this new law and its future. On the same day that Governor Napolitano signed the legislation into law, she noted several aspects of the law that she believed needed correction, and suggested to the leadership of the Legislature that a special session should be called. There appears to be a strong possibility of a special session occurring before the end of this year. Additionally, various employers have already filed suit in federal court, asserting the new law is unconstitutional on several grounds.

What should Arizona employers do prior to the new law's effective date (January 1, 2008)?

  1. Monitor developments as they occur;
  2. Carefully audit current I-9 files and ensure that appropriate policies and practices are in place;
  3. Consult with legal counsel to evaluate whether participating in the federal government's Employment Eligibility Verification Program before the mandatory start date may be beneficial for your organization.


If you have any questions or concerns about the new Arizona Law, contact your Jennings Strouss attorney, or the Chair of our firm's Labor and Employment Department, John Egbert at 602-262-5994 or jegbert@jsslaw.com.