Alabama Employment Law Report : Alabama Employment Lawyer & Attorney : Daniel J. Burnick : Sirote & Permutt Law Firm

Since I first posted a detailed list of what Alabama's new Immigration Law covers, quite a bit has gone on.  There have been marches, much discussion on radio, TV and the Internet, and numerous articles in newspapers in Alabama and around the country.  This entry will give a broader view of the immigration debate and how Alabama's law may be impacted.

Arizona started the immigration reform bandwagon in January, 2008 when their law became effective.  Alabama's law contains many similar provisions to the Arizona law.  Since January, 2008, there have been only 3 known enforcement actions against employers.  This number may increase since the United States Supreme Court recently found that the "Legal Arizona Workers Act" was not preempted by federal law as it pertains to the mandatory use of the E-Verify system by private sector employers.  In a 5-3 decision, the Court found that the federal Immigration Reform and Control Act preserves the authority of states to impose sanctions through licensing, permitting and similar laws.  Since the Arizona law only covers knowing and intentional violations, the revocation of licenses can only take place for the more egregious violations.  Arizona law also provides a defense from liability when using the E-Verify system.  Likewise, Alabama's law contains the "knowing and intentional" language, as well a defense for employers when using the E-Verify system.  When a lawsuit is filed against Alabama, I anticipate that the courts will uphold the use of E-Verify, relying on the recent Supreme Court Decision.  Although I do not want to focus on the criminal penalties, I anticipate that these sections of the law will be struck down as unconstitutional.

Around the southeast, many states have also enacted Immigration Reform laws.  In Georgia, a federal judge temporarily blocked the parts of Georgia's law dealing with power of the police to check the status of suspects who don't have proper identification, as well as parts of the law making it illegal to knowingly and willingly transport  or harbor illegal aliens.  Parts of immigration laws have also been blocked in Indiana and Utah.

On June 23, 2011, Governor Perdue of North Carolina signed into law that state's mandatory E-Verify bill, requiring private employers with at least 25 employees and all counties and cities to use the E-Verify system to check the status of newly hired employees. 

In Tennessee, Governor Haslam signed the Tennessee Lawful Employment Act, which requires all workers with more than 5 workers to either obtain and keep copies of certain I-9 documents or to enroll in the E-Verify system.

In Florida, the Legislature failed to pass a proposed Immigration Reform Act by the close of the legislative session in May. The Legislature is expected to take up the bill again next year.  Likewise, an Immigration bill in Mississippi died in the legislature earlier this year. 

Practice pointer.  I would encourage anyone who is interested in the new Alabama law to read the bill:  what is being talked/written about is often not accurate.  I anticipate that a lawsuit will be filed seeking to declare all or parts of the law unconstitutional before it becomes effective in September.  Although it is difficult to predict the outcome of any lawsuit, I believe that the courts will find parts of Alabama's law unconstitutional: those dealing with police powers and criminal violations for knowingly transporting harboring, renting to or seizing of property.  I believe that the E-Verify portions of the law will be upheld.

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The IRS announced, effective July 1, 2011 that the mileage reimbursement rate is being raised to 55.5 cents a mile on vehicles used for business purposes.  The current rate is 51 cents.  The mileage reimbursement rate for medical or relocation purposes will increase from 19 cents to 23.5 cents per mile.  Mileage for charitable purposes will remain at 14 cents.  IRS Commissioner Doug Shulman stated that "This year's increased gas prices are having a major impact on individual Americans....We are taking this step so the reimbursement rate will be fair to taxpayers."

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Immigration.  As I was driving to work yesterday, I passed a Taxi, stopped in the middle of the road, with flashers flashing, waiting to pick someone up to take them to work (I reached this conclusion by the way the person was dressed and the fact that the Taxi is there on a regular basis at the same time.  However, this was the first time I saw it in the middle of the road).  My first thought was that this would be in violation of Alabama's new Immigration Act, once it is effective, since the Taxi was impeding the normal flow of traffic while picking up a person for work at another location.  This conduct would subject both the driver and the passenger to criminal charges and possibly the forfeiture of the Taxi.  Is this what the law is supposed to cover?

Social Media.  An interesting piece in the Birmingham News this morning by Kevin Scarbinsky pointing out that the NCAA charged North Carolina with an NCAA violation by not properly monitoring several football players "social networking activity that visibly illustrated potential amateurism violations within the football program..."  Is this a sign of things to come in the workplace, if employers engage in improper conduct, use social networking sites to discuss it, and the company did not know about it? 

Class actions.  The United States Supreme Court ruled in favor of Wal-Mart, denying to certify a class action lawsuit with as many as 1.6 million women as members of the class alleging sexual discrimination.  In a 5-4 decision, with Justice Scalia writing the majority opinion, the Court found that there were too many managerial decisions being made to certify the claims as a class action.

Sexual Harassment Settlement.  Recently, the EEOC announced a $1.95 million settlement with U.S. Security Associates to resolve a sexual harassment lawsuit brought by the EEOC.  The EEOC alleged, in the lawsuit, that Mr. Hargrove, the district manager for USSA in Birmingham, sexually harassed several female employees by subjecting them to unwelcome sexual demands, demeaning gestures, inappropriate touching, and other offensive conduct.  One of these employees, Jamie Marks, had previously filed her own suit against USSA and received a $2.7 million jury verdict.  6 other females intervened in the EEOC's case.  As part of the settlement, USSA agreed to pay $1.95 million to the women.  USSA also entered into a Consent Decree, for a period of 42 months, and agreed to revise it's policies and procedures and train all staff on anti-harassment procedures.  USSA also agreed to hire a consent decree coordinator who will be responsible for monitoring USSA's compliance and submitting periodic reports to the EEOC. 

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As promised last week, I have had a chance to review the 72 page Immigration Reform Act that was signed into law by Governor Bentley last week.  This report is merely my interpretation of the Act as it pertains to Employers and Employees in Alabama, and not my personal opinions on the ongoing immigration controversy in general. 

1.  The Act is officially named the Beason-Hammon Alabama Taxpayer and Citizen Protection Act.

2.  The Act states that "The State of Alabama finds that illegal immigration is causing economic hardship and lawlessness in this state and that illegal immigration is encouraged when public agencies within the state provide public benefits without verifying immigration status."

3.  An "Employer" is defined as "Any person, firm, corporation, partnership, joint stock association, agent, manager, representative, foreman, or other person having control or custody of any employment, place of employment, or of any employee, including any person or entity employing any person for hire withing the State of Alabama, including a public employer."  This definition imposes liability on individuals, as well as entities.

4.  Section 7 denies state or local public benefits to any alien who is not lawfully present in the United States, and requires each agency to verify with the federal government the lawful presence in the Untied States of each alien who applies for state or local public benefits.  Verification is NOT required in the following instances: 

     a.  For primary or secondary school education

     b.  For obtaining health care items and services that are necessary for the treatment of an emergency medical condition of the person involved and are not related to an organ transplant procedure.

     c.  For short term, noncash, in kind emergency disaster relief

     d.  For public health assistance for immunizations with respect to immunizable diseases

     e.  For programs, services, or assistance, such as soup kitchens, crisis counseling and intervention, and short-term shelter specified by federal law or regulation

     f. Prenatal care

     g.  For child protective services and adult protective services and domestic violence services workers

5.  The verification that an alien seeking state or local public benefits is an alien lawfully present in the United States shall be made through the Systematic Alien Verification for Entitlements (SAVE) Program.

6.  An alien who is not lawfully present in the United States shall not be permitted to enroll in or attend any public postsecondary education institution in this state.

7.  As a condition for the award of any contract, grant, or incentive by the state, any  political subdivision thereof, or any state-funded entity to a business entity or employer that employs one or more employees, the business entity or employer shall not knowingly employ, hire for employment, or continue to employ an unauthorized alien and shall attest to such, by sworn affidavit signed before a notary.

8.  As a condition for the award of any contract, grant, or incentive by the state, any political subdivision thereof, or any state-funded entity to a business entity or employer that employs one or more employees, the business entity or employer shall provide documentation establishing that the business entity or employer shall participate in the E-Verify program and shall verify every employee that is required to be verified according to the applicable federal rules and regulations. 

9.  A contractor of any tier shall not be liable under this section when such contractor contracts with its direct subcontractor who violates [the language set forth in paragraph 8 above] if the contractor receives a sworn affidavit from the subcontractor signed before a notary attesting to the fact that the direct subcontractor, in good faith, has complied with {paragraph 8} with respect to verifying each of its employee's eligibility for employment, unless the contractor knows the direct subcontractor is violating [paragraph 8].

10.  The first violation shall deem the business entity or employer to be in violation of the contract with the state, and the Attorney General may bring an action to suspend the business license for a period of up to 60 days.  If an action is filed, the court SHALL order the business entity or employer to file a signed, sworn affidavit with the the local district attorney within 3 days of the issuance of the order that the unauthorized alien(s) has been terminated and that it will not knowingly or intentionally employ an unauthorized alien in this state.  Before a business license is reinstated, a legal representative of the entity must submit to the court a sworn affidavit stating that the employer is in compliance with the Act.  A second or subsequent violation "shall terminate the contract after providing notice and an opportunity to be heard".  The Attorney General may bring an action to permanently revoke the business license. 

 11.  A business that complies by using the E-Verify program shall not be found in violation of this Act.

12. It is unlawful for an unauthorized alien to knowingly apply for work, solicit work in a public or private place, or perform as an employee or independent contractor in Alabama.

13.  It is unlawful for an occupant of a motor vehicle that is stopped on a street, roadway or highway to attempt to hire or hire and pick up passengers for work at a different location if the motor vehicle blocks or impedes the normal movement of traffic.  It is also unlawful for a person to enter a motor vehicle in such a situation.

14.  It is unlawful for a person to conceal, harbor, or attempt to conceal an alien, or attempt to do these things in Alabama if the person knows or recklessly disregards the fact that the alien has come to, entered or remains in the United States in violation of federal law.

15.  Harbor an alien unlawfully present in the United States by entering into a rental agreement  with an alien to provide accommodations, if the person knows or recklessly disregards the fact that the alien is unlawfully present in the United States.

16.  Any conveyance, including any vessel, vehicle, or aircraft, that has been or is being used in the commission of a violation of this Act, and the gross proceeds of such a violation, shall be subject to civil forfeiture.

17.  "No business entity, employer, or public employer shall knowingly employ, hire for employment, or continue to employ an unauthorized alien to perform work within" Alabama.

18.  Effective April 1, 2012, every business entity or employer in Alabama shall enroll in E-Verify and shall verify the employment eligibility of the employee through E-Verify.  The use of E-Verify means that the employer did not violate this Act.

19.  The failure to use E-Verify after April 1, 2012 will subject the employer, on a first violation by a court, to an order requiring the employee to be terminated, subject the business to a 3 year probationary period, during which the business shall file quarterly reports with the local district attorney of each new employee who is hired in Alabama, and the court shall order the appropriate authority to suspend the business license for a period not to exceed 10 business days.  Before the business license can be reinstated, the employer must verify to the court that it is in compliance with this Act.  A second violation requires the court to direct the appropriate authority to revoke all business licenses and permits and to forever suspend the business licenses and permits, Compliance with E-Verify establishes an affirmative defense that the business did not knowingly hire or employ an unauthorized alien. 

20.  Any employer that terminates an employee to comply with this Act shall not be liable for any claims made by the employee, provided that the termination is made without regard to the race, ethnicity, or national origin of the employee and that such termination is consistent with the anti-discrimination laws of Alabama and the United States.

21.  Any resident of Alabama may petition the Attorney General to bring an enforcement action against a specific business.  A valid petition "shall include an allegation that describes the alleged violator or violators, as well as the action constituting the violation, and the date and location where the action occurred.  The Attorney General has 60 days to respond, either by filing a civil complaint or informing the petitioner in writing that the AG has determined that filing a civil complaint is not warranted.

22.  "No wage, compensation, whether in money or in kind or in services, or enumeration of any kind for the performance of services paid to an unauthorized alien shall be allowed as a deductible business expense for any state income or business tax purposes" in Alabama.  Any business that fails to comply with this section "shall be liable for a penalty equal to 10 times the business expense deductions claimed". 

23.  The Alabama Department of Homeland Security shall establish and maintain an E-Verify employer agent service for any business entity or employer with 25 or less employees to use the E-Verify program.  The Alabama Department of Homeland Security shall establish an E-Verify employer agent account with the US DHS, shall enroll a participating business or employer in the E-Verify program on its behalf, and shall conform to all federal statutes and regulations governing E-Verify employer agents.  Alabama DHS shall not charge a fee to participating businesses.  The DHS E-Verify employer agent service shall be in place within 90 days of the effective date of this Act.

24.  Effective January 1, 2012, any business shall provide proof to the state, political subdivision thereof, or state-funded entity that the business is enrolled and is participating in the E-Verify program before receiving any contract, grant or incentive by the state, any  political subdivision or any state funded entity.

25.  Every 3 months, the Alabama DHS shall request from the US DHS a list of every business entity or employer in Alabama that is enrolled in the E-Verify program, and shall make the list available on it's website. 

26.  2 sections of this Act dealing with the Alabama Department of Public Safety became effective on the day the Act was signed into law on June 9.  The section set forth in Paragraph 24 above becomes effective on January 1, 2012.  The section set forth in Paragraph 19 above becomes effective on April 1, 2012.  The remainder of the Act becomes effective on the on the first day of the third month following the Governor's signature, which I believe is September 1, 2011.

Practice Pointers.  This is a long and complicated law that will be fought through the court system.  If there is no stay of the law pending the outcome of the court process, the Act will require employers to use the E-Verify system, no later than April 1, 2012.  Whether or not this law is upheld, employers may want to consider using the E-Verify system if they are not already doing so.  This law also imposes a great deal of responsibility on the State, including the Department of Homeland Security, the Attorney Generals office,the District Attorneys around the state and the courts around the state.  In these times of economic troubles, the legislature will have to come up with the money necessary to fund these mandates.  It will be an interesting journey, no matter what your personal beliefs are about this law. 

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On Thursday, June 9, 2011, Governor Bentley signed what is being called the toughest immigration bill in the country.  Although I have not seen the actual bill signed into law, it is my understanding that the bill will require the following:

1.  All businesses to use the e-verify system.  The effective date of use will be sometime in 2012.

2.  Provides defenses for businesses who use the e-verify system, including an affirmative defense against business penalties and prevents lawsuits against businesses who terminate employees based on a final non-confirmation determination.

3.  Creates criminal misdemeanors for aiding and abetting illegal aliens and hiring illegal day laborers.

Several articles are published at Al.com, Reuters and NumbersUSA.

Once I receive a copy of the bill, I will update you with more details.

Of course, this bill will probably be challenged in court, and the outcome is uncertain.  If a lawsuit is filed, the court may stay it's implementation until the case is resolved.

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Over the last several months, I have had several clients contact me about the possible theft of funds and personal identification information by employees.  I have also noticed a large number of newspaper reports, from throughout Alabama, concerning employee theft.  These include the following: 

In Huntsville, a postal worker was indicted for embezzling over $12,000 from APWU Local 359.  It is alleged that the embezzlement took place while he was president of the local union.

A former nursing home bookkeeper from Wetumpka was arrested for first degree theft of property by the Attorney General's Medicaid Fraud Control Unit for allegedly stealing over $115,000.  The arrest took place after the management at the nursing home reported the matter to the authorities.

A Leeds woman was sentenced to 41 months in federal prison for embezzling over $427,000 from her former employee, J. Loper and Co.  During her 10 year employment, the woman wrote checks to pay for personal items and made entries into the company's books to conceal the fraud.

In Decatur, a man who worked at Target for a short time was arrested for stealing in excess of $2,500 from the store.

Although not an employee, last week it was reported that a woman stole 4,500 patients' medical records from Trinity Medical Center while visiting a patient between March 22 and April 1, 2011.

Practice pointer.  It is important that companies take the appropriate steps to protect their assets, including checking accounts, credit cards, trade secrets, personal identifiers, such as social security numbers, dates of birth and addresses, computers, medicaid/medicare billing numbers and stock.  Employers should consult their accountants, attorneys, loss prevention consultants or other appropriate experts to implement the necessary safeguard to protect their assets.   

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