Raising Arizona law in Florida? Part I.

• Author: Carson, Giselle
• Position: Labor and Employment Law

During his election campaign, Florida Gov. Rick Scott vowed to bring the Arizona-style immigration law to Florida. In August, he said he believed Florida will pass an immigration bill in 2012 despite our legislature's failure to reach a consensus on the issue this year. The federal government's inaction on comprehensive immigration reform, the state and local governments' implementation of laws and enforcement measures, and a recent decision of the U.S. Supreme Court, all make this vow a more likely reality in 2012.

The Recently Upheld Legal Arizona Workers Act

In July 2007, former Arizona Governor Janet Napolitano signed into law the controversial Legal Arizona Workers Act (LAWA), (1) which prohibits Arizona employers from knowingly or intentionally employing an "unauthorized alien," defined as an individual who lacks the right or authorization under federal law to work in the United States.

LAWA authorizes the Arizona attorney general (AG) or a county attorney to investigate a complaint alleging that an employer has hired an unauthorized alien. The AG or county attorney must inquire about the status of the alleged unauthorized alien with the federal government pursuant to 8 U.S.C. [section] 1373(c). (2)

If the [section] 1373(c) inquiry reveals that the worker is unauthorized--by showing, for example, that the worker is in removal proceedings--the AG or county attorney must notify U.S. Immigration and Customs Enforcement (ICE) and local law enforcement. The county attorney must file an action against the employer in the superior court in the county where the unauthorized alien is employed.

If the employer is found to have knowingly or intentionally employed an unauthorized alien, LAWA authorizes Arizona courts to impose various harsh penalties on employers, including suspension or revocation of the employer's Arizona business license. The act defines a license very broadly to include any agency permit, certificate, approval, registration, charter, or similar form of authorization, foundational documents, articles of incorporation, and certificates of partnership.

LAWA also requires that as of January 1, 2008, all employers doing business in the state use the federal E-Verify program to verify the work authorization of all new hires. (3) Furthermore, "proof of verifying the employment authorization of an employee through the E-Verify program creates a rebuttable presumption that an employer did not knowingly employ an unauthorized alien." (4)

U.S. Chamber of Commerce v. Whiting Background and Decision

The U.S...