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

Mandatory Use of New I-9 Form.  Beginning May 7, 2013, the use of the new Employment Eligibility Verification Form I-9 will be mandatory for all employers in the United States.  This form, and instructions, can be found at USCIS.  The USCIS has also published an updated Handbook for Employers, Guidance for Completing Form I-9.  Please note that the Spanish I-9 form can only be completed in Puerto Rico.  It can be used for reference purposes only in the 50 states and US territories. The Handbook states that "Employers must have a completed Form I-9 on file for each person on their payroll who is required to complete the form. Form I-9 must be retained and stored by the employer either for three years after the date of hire or for one year after employment is terminated, whichever is later. The form must be available for inspection by authorized U.S. Government officials from the Department of Homeland Security, Department of Labor, or Department of Justice."

EEOC Record Verdict.  In Davenport, Iowa, a jury returned a verdict in favor of the EEOC and against Hill County Farms, dba Henry's Turkey Service, in the amount of $240 Million as the result of long term abuse of workers with intellectual disabilities.  The jury found that 32 men with intellectual disabilities were subjected to severe abuse and discrimination between 2007 and 2009.  Each man was awarded $5.5 million in compensatory damages, and $2 million in punitive damages.  The court had previously awarded each man $1.3 million for unlawful wage discrimination.  This award resulted from the Court finding that the monthly pay of $65 was discriminatory, and they should have been paid between $11 & $12/an hour.  The EEOC presented evidence that the owners and staffers of Henry's Turkey "subjected the workers to abusive verbal and physical harassment; restricted their freedom of movement; and imposed other harsh terms and condition of employment such as requiring them to live in deplorable and sub-standard living conditions, and failing to provide adequate medical care when needed....Verbal abuses included frequently referring to the workers as "retarded," "dumb ass" and "stupid."  Class members reported acts of physical abuse including hitting, kicking, at least one case of handcuffing, and forcing the disabled workers to carry heavy weights as punishment". 

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I hope everyone had a good long Labor Day weekend and didn't get too much rain.  Today, I will talk about a number of issues that have an impact at work.

I-9 Forms Still Valid.  The most recent version of the I-9 had an OMB expiration date of August 31.  Notwithstanding last weeks expiration date, the U.S. Citizenship and Immigration Services (USCIS) announced that the current version of the I-9 will remain in effect until they finalize revisions to the form.  As a reminder, new employees are required to complete the I-9 form no later than their first day of employment, and the employer has 3 business days to review any supporting documents and must complete section 2 of the form.  For Alabama employers, the use of E-Verify is mandatory for new employees.

 ICE Sued for Discrimination Against Men.  Speaking of ICE, James T. Hayes, a top immigration official in New York, alleges that he was removed from a high level position in favor a a less-qualified woman because he was a man. He is also alleging that he was retaliated against when he threatened to file the lawsuit. The NY Times  reported that the agency's Chief of Staff, Suzanne Barr, initially voluntarily left the agency on paid leave pending the outcome of an internal investigation, and resigned this past weekend.  It will be interesting to see how this case is resolved. 

Bad Bosses.  Having a son who plays baseball for Rhodes College, I am very sympathetic for baseball parents.  My nominee for the worst boss of the year award goes to the boss of Billie Ann Tomei.  Her son, Cole, plays baseball for the Petaluma National All-Stars, and Trevor, her husband, is the coach.  Petaluma advanced to the Little League World Series held in Pennsylvania after winning the West Regional Tournament.  Billie Ann was working as the office manager for a CPA in Petaluma, and she asked for time off to attend the West Regionals.  His response?  "(My boss) wouldn't let me take time off...He told me, 'If you go, write yourself your last check'.  So I wrote myself my last check."  I wonder how much business the Petaluma CPA will lose as a result of his decision.

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On Monday, August 20th, the 11th Circuit issued 2 opinions addressing HB56,  USA v. Alabama and HICA v. Alabama.  I have previously written extensively about the law, Judge Blackburn's original opinions, and the 11th Circuit's preliminary rulings on the injunctions.  Yesterday's opinions address in detail (57 pages in the USA case and 27 pages in the HICA case) the Court's rulings on the Preliminary Injunctions and the status of HB 56.  It is important to note that the Alabama Legislature rewrote HB 56 with HB 658 during the 2012 legislative session, and these opinions will have some impact on the new law.

In the USA V. Alabama opinion, the Court addressed 10 provisions of HB 56, referring to the original sections as opposed to the official code sections:

1.  Section10, which created a new state crime for an unlawfully present alien's "willful failure to complete or carry an alien registration document."  Judge Blackburn did not enjoin the enforcement of this section, but on the initial appeal, the 11th Circuit  enjoined the enforcement of this section. In its most recent opinion, the 11th Circuit concluded that the US is likely to succeed on its preemption claim, the Court reversed Judge Blackburn's decision and remanded the case for the entry of a preliminary injunction as to Section 10.

2.  Section 11, which criminalizes an unauthorized alien's application for, solicitation of, or performance of work inside Alabama.  Judge Blackburn enjoined the enforcement of this section, and the 11th Circuit affirmed the injunction.

3.  Section 12, which requires law enforcement officers to determine a lawfully seized individuals immigration status when the officer has reasonable suspicion that the seized individual is unlawfully present in the US.  The enforcement of this section was not stayed by Judge Blackburn, the 11th Circuit affirmed this decision, and Section 12 is enforceable. 

4.  Section 13, which creates 3 new state crimes: the concealment, harboring or shielding from detection of any alien, as well as any attempt to do so; the encouraging or inducing of an alien to "come to or reside in" Alabama; and transporting, attempting to transport, or conspiracy to transport an alien "in furtherance of the unlawful presence of the alien in the US."  Judge Blackburn enjoined the enforcement of this section, and the 11th Circuit affirmed the injunction.

5.  Section 16, which disallows an employer's state tax deduction for wages and compensation paid to an alien unauthorized to work in the US and imposing a penalty equal to 10 times the deduction claimed if done so willingly.  Judge Blackburn enjoined the enforcement of this section, and the 11th Circuit affirmed the injunction.

6.  Section 17, which makes it a discriminatory practice for an employer to fire or fail to hire a US citizen or authorized alien, while employing or hiring an unauthorized alien to work for the employer.  Judge Blackburn enjoined the enforcement of this section and the 11th Circuit affirmed the injunction.

7.  Section 18, which requires that if a driver does not have his drivers' license in his possession, a reasonable effort must be made within 48 hours to determine citizenship, and if an alien, whether he is lawfully present in the US.  The enforcement of this section was not stayed by Judge Blackburn, and the 11th Circuit affirmed this decision, and Section 18 is enforceable.

8.  Section 27, which prohibits courts from enforcing a contract to which an unlawfully present alien is a party, provided that the other party "had direct or constructive knowledge" of the alien's unlawful presence and the performance of the contract would require the alien to remain in Alabama for more than 24 hours. Judge Blackburn did not enjoin this section, but on the initial appeal, the 11th Circuit enjoined the enforcement of this section.  In the new opinion, the 11th Circuit reversed Judge Blackburn's refusal to enjoin this section, and remanded the case for Judge Blackburn to enjoin the enforcement of Section 27. 

9.  Section 28 which sets out a process for schools to collect data about the immigration status of students who enroll in public schools.   The 11th Circuit initially enjoined the enforcement of this section. The 11th Circuit did not further address Section 28 in this opinion, since it was decided in the HICA decision.

10.  Section 30 which prohibits an unlawfully present alien from entering or attempting to enter into a business transaction with the state or political subdivision thereof.  The 11th Circuit initially enjoined the enforcement of this section. In this latest decision, the 11th Circuit affirmed Judge Blackburn and Section 30 is enforceable. 

In the HICA v. Alabama opinion, the Court addressed several provisions of HB56 that were not addressed in the USA v. Alabama decision.

1.  Section 8, which provides that an unlawfully present alien "shall not be permitted to enroll in or attend any public post secondary education institution" in Alabama.  Judge Blackburn enjoined the enforcement of this section, and the 11th Circuit found that HB 658 eliminated the challenged language, and vacated the injunction as moot. 

2.  Section 28, which provides a process for schools to collect data about the immigration status of students who enroll in public schools,  was not enjoined by Judge Blackburn.  The 11th Circuit, on the initial appeal, did enjoin this section.  In the current opinion, the 11th Circuit reversed Judge Blackburn and remanded the case requiring Judge Blackburn to enter in injunction prohibiting the enforcement of Section 28.

3.  The court reached the same conclusions in this case as in the USA case regarding Sections 12, 18 and 30, finding these sections enforceable.

Practice pointers.  In 2012, the Alabama Legislature rewrote HB 56 through HB 658.  Although a portion of the 11th Circuit's opinions referred to HB 658, I anticipate that there will be some additional challenges to the new immigration law in the near future.  As expected, the 11th Circuit relied heavily on the Supreme Court case of Arizona v. United States.  The Supreme Court was clear that their decision in upholding parts of Arizona's law could be challenged in the future depending on how the state enforced the law and whether it can be shown that the actual enforcement of the law may raise additional preemption and constitutional issues.   The same can be said for Alabama:  I anticipate additional court challenges based on how the law is enforced concerning Sections 12, 18 and 30.  Only time will tell how the immigration issue will ultimately be resolved. 

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Earlier today I had the opportunity to speak with Colin O'Keefe of LXBN regarding the Supreme Court's ruling on Arizona's controversial Support Our Law Enforcement and Safe Neighborhoods Act. In the interview, I explain what was tossed out, what the Court upheld and what it means for other states, including Alabama.

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What a mess.  HB 56 became Alabama's Immigration Law in 2011.  Various provisions were enjoined by Judge Blackburn, and additional provisions were enjoined by the 11th Circuit.  The 11th Circuit announced it would not rule on the merits of the appeal pending the SCOTUS decision on Arizona's Immigration law.  The Alabama Legislature revised the State's Immigration Law by enacting HB 658, which was signed into law by Governor Bentley in 2012.  HB 658 repealed some of HB 56 and added some new provisions.  The SCOTUS released it's opinion on the Arizona law on Monday, June 25.  So, what is the current status of Alabama's law and how will the Arizona decision impact Alabama's law?  Let me try to sort it out.

Section 2(B) of Arizona's law was upheld by the SCOTUS.  It provides that state officers make a "reasonable attempt...to determine the immigration status of any person they stop, detain or arrest on some other legitimate basis if reasonable suspicion exists that the person is an alien and is unlawfully in the United States."  HB 56 provides that "Upon any lawful stop, detention or arrest made by any state, county or municipal law enforcement officer...where reasonable suspicion exists that the person is an alien who is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the citizenship and immigration status of the person, except if the determination may hinder or obstruct an investigation."  This language appears to be similar to Arizona's law, and will probably be held as constitutional by the 11th Circuit.  HB 658 did not amend or repeal this provision, so the language in HB 56 is still the current law.  It should be noted that this section was not stayed by either Judge Blackburn or the 11th Circuit.

Section 3 of Arizona's law was found by SCOTUS to be preempted by federal law and unenforceable.  Section 3 creates a new state misdemeanor forbidding the "willful failure to complete or carry an alien registration document" as required by US law.  HB 56 provides that "a person is guilty of willful failure to carry an alien registration document if the person is in violation of 18 USC Section 1304(e) or 8 USC Section 1306(a) and the person is an alien unlawfully present in the United States."  This language is virtually identical to Arizona's law, and I anticipate that the 11th Circuit will find in unenforceable as it is preempted by Federal Law.  HB 658 did not amend or repeal this provision, so the language in HB 56 is still the current law.  It should be noted that this provision was stayed by the 11th Circuit.

Section 5(C) of Arizona's law was found by SCOTUS to be preempted by federal law and unenforceable.  Section 5(C) makes it a misdemeanor for "an unauthorized alien to knowingly apply for work, solicit work in a public place or perform work as an employee or independent contractor".  HB 56 provides that "It is unlawful for a person who is an unauthorized alien to knowingly apply for work, solicit work in a public place, or perform work as an employee or independent contractor in this state."  This language is identical, and thus I expect the 11th Circuit to find it unenforceable.  HB 658 did not amend or repeal this language, so the language in HB 56 is still the current law.  It should be noted that this provision had been stayed by Judge Blackburn. 

 Section 6 of Arizona's law was found by SCOTUS to be preempted by federal law and unenforceable.  Section 6 provides that a state law enforcement officer "without a warrant, may arrest a person if the officer has probable cause to believe...[the person] has committed any public offense that makes [him] removable from the United States."  HB 56 and HB 658 do not have a similar provision.

Practice Pointers.  It appears as if the stays entered by Judge Blackburn and the 11th Circuit are consistent with the provisions of the Arizona law addressed by the SCOTUS.  Based on news reports from yesterday, it looks as if the Federal Government will not cooperate with Arizona in detaining and deporting illegal aliens unless there is a serious mitigating factor, such as being convicted of a felony.  I have heard this referred to as a "catch and release" problem:  if the Federal Government will not detain and deport illegal aliens, the impact of the law will be minimized at the state and local level.  But that is a different issue for a different day.  Keep in mind that the E-Verify provisions of the Alabama law are still in place and the use of E-Verify is mandatory. 

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The Supreme Court reviewed 4 sections of the Arizona Immigration Law known as SB 1070.  These sections, and the Court's findings are as follows:

Section 3 creates a new state misdemeanor, forbidding the "willful failure to complete or carry an alien registration document" as required by US law.  Under current federal law, aliens who remain in the country for more than 30 days are required to apply for registration and be fingerprinted.  The Court found that the Federal Government has "occupied the field of alien registration" and Federal Law preempts the states from imposing their own penalties for the violation of federal law.  The Court struck down Section 3 of Arizona's law.

Section 5(C) "enacts a state criminal prohibition where no federal counterpart exists".  Section 5(C) makes it a state misdemeanor for "an unauthorized alien to knowingly apply for work, solicit work in a public place or perform work as an employee or independent contractor".  Violations are punishable by up to 6 months in jail and a $2,500 fine.  The Court found that the Immigration Reform and Control Act demonstrates that  "Congress made a deliberate choice not to impose criminal penalties on aliens who seek, or engage in, unauthorized employment."  The Court concluded that  "Arizona law would interfere with the careful balance struck by Congress with respect to unauthorized employment of aliens.  Although 5(C) attempts to achieve one of the same goals as federal law--the deterrence of unlawful employment--it involves a conflict in the method of enforcement."  The Court struck down Section 5(C), finding that it is preempted by federal law. 

Section 6 of Arizona's law provides that a state law enforcement officer "without a warrant, may arrest a person if the officer has probable cause to believe...[the person] has committed any public offense that makes [him] removable from the United States."  Federal law sets forth when it is appropriate to arrest an alien during the removal process.  Section 6 "attempts to provide state officers even greater authority to arrest aliens on the basis of possible removability than Congress has given to trained federal immigration officers."  "This would allow the state to achieve its own immigration policy.  The result could be unnecessary harassment of some aliens (for instance, a veteran, college student, or someone assisting with a criminal investigation) whom federal officials determine should not be removed."  The Court struck down Section 6, finding it is preempted by federal law.

Section 2(B) requires state officers to make a "reasonable attempt...to determine the immigration status of any person they stop, detain, or arrest on some other legitimate basis if reasonable suspicion exists that the person is an alien and is unlawfully present in the United States".  The Court found 3 limits built into Section 2(B):  1.  a detainee is presumed not to be an alien unlawfully present in the United States if he/she can provide a valid Arizona driver's license or similar identification; 2.  officers "may not consider race, color or national origin...except to the extent permitted by the United States [and] Arizona Constitution", and 3.  the provisions must be "implemented in a manner consistent with federal law regulating immigration protecting the civil rights of all persons and respecting the privileges and immunities of United States citizens."  The Court found that Congress has encouraged the sharing of information about possible immigration violations between states and the Federal Government.  The Court found that detaining individuals solely to verify their immigration status would raise constitutional concerns.  But 2(B) could be read to avoid these concerns and gives examples concerning a stop for jaywalking , where it would not be reasonable to prolong the stop for the immigration inquiry, since there is not an arrest, merely the issuance of a ticket.  In a DUI situation, which goes beyond a mere stop, and results in an arrest, it is not clear that the verification process would result in a prolonged detention.  Without showing that a verification check during a lawful detention or after the detainee has been released, or after an arrest, 2(B) is valid without showing that it has some other adverse consequence under federal law.  The Court upheld Section 2(B)  but clearly stated that "[t]his opinion does not foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect".

Practice Pointers.  The opinion was authored by Justice Kennedy, joined by Justices Roberts, Ginsburg, Breyer and Sotomayer.  Justices Scalia, Thomas and Alito filed opinions concurring in part and dissenting in part.  Justice Kagan did not participate in the consideration or decision of the case.  I will be following up shortly with an analysis of this Opinion in relation to Alabama's immigration law. 

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The US Supreme Court issued its ruling this morning on Arizona's Immigration Law.  According to Al.com, the Court upheld the provision permitting law enforcement officials to check on the immigration status of during an arrest or other contact.  Many of the other provisions of the Arizona law were blocked by the Court.  Since the 11th Circuit has been waiting on this ruling to address Alabama's Immigration Law, an opinion could follow shortly. I will provide a more detailed analysis shortly, once I have the opportunity to read the decision. 

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Notwithstanding his threat to veto the amended and revised immigration bill, Governor Bentley signed it into law on Friday night.  You can review HB56, last years law  my prior blog posts of  June 12, 2011 and  August 25, 2011.  The new law is EFFECTIVE IMMEDIATELY.  As it applies to employment issues, the law makes the following changes:

Section 31-13-3(2), defining a Business Entity, now reads, in part, (with the new language underlined):  Any person or group of persons employing one or more persons...."

Section 31-13-3(10)(d) now permits the use of a valid Uniformed Services Privileges and Identification Card as proof that the person is in the US lawfully.

Section 31-13-3(14) defines a State-Funded Entity, (with the addition underlined) as "Any governmental entity of the state or a political subdivision thereof or any other entity that receives any monies from the state or a political subdivision thereof; provided, however, an entity that merely provides a service or a product to any governmental entity of the state or a political subdivision thereof, and receives compensation for the same, shall not be considered a state-funded entity."  This resolves many of the paperwork problems that suppliers, such as restaurants for catering purposes, or providers of office supplies had under the old law. 

Section 31-13-15 now defines a Subcontractor as:  "A person, business entity or employer who is awarded a portion of an exiting contract by a contractor, regardless of its tier."

Section 31-13-5(2)(f) added the language "of which the person has knowledge" to the requirement every person working for the state or political subdivision thereof has an obligation to report violations of unlawful aliens being in the state.

Section 31-13-9(a) now reads:  As a condition for the award of any contract, grant or incentive by the state.....the business entity or employer shall not knowingly employ, hire for employment or continue to employ an unauthorized alien within the State of Alabama".  The requirement of an affidavit has been removed.

Section 31-13-9(b) also adds the requirement that the employee must be within the State of Alabama.

Section 31-13-9(c) addresses "any subcontractor on a project paid for by contract, grant, or incentive by the state...shall not knowingly employ, hire for employment, or continue to employ an unauthorized alien with the State of Alabama..."the subcontractor "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" during the performance of the contract.

Section 31-13-9(d) has been amended to read in it's entirety:  "A contractor of any tier shall not be liable under this section when such contractor contracts with its direct subcontractor who violates subsection (c) unless it is shown that the contractor knew or should have known that the direct subcontractor was in violation of subsection (c)." 

Section 31-13-9(e)(1) sets forth in detail the penalties for the first time a business entity or employer, including a subcontractor, violates this section.  The penalties for a first time offense include the termination of every unauthorized alien, subjecting the business to a 3 year probationary period throughout the state, during which time the employer must file quarterly reports with the Department of Industrial Relations of each new employee hired, submit a signed sworn affidavit to DIR withing 3 days of the court order confirming that every unauthorized alien has been terminated and that the business will not knowingly or intentionally employ an unauthorized alien in Alabama.  If the court finds the employer to be in violation of this section, the court shall order the appropriate licensing agency to suspend the business licenses or permits at the location where the unauthorized alien worked for a period not to exceed 60 days.  Before a business license can be reinstated, the employer must provide an affidavit stating that it is in compliance with the law and is enrolled in E-Verify. 

Section 31-13-9(e)(2) sets forth the penalties for a second violation within 10 years.  The penalties include the termination of every unauthorized alien, and a five year probationary period, during which time quarterly reports must be filed with DIR.  The employer must file an affidavit within 3 days that the unauthorized alien has been terminated and that the employer will not knowingly or intentionally employ an unauthorized alien in the state.  The business licenses and permits SHALL be suspended for a period  no less than 60 days and not to exceed 120 days at the location the unauthorized alien performed work.  An affidavit must be submitted before a business license or permit can be reinstated that it is in compliance with the law and enrolled in E-Verify.  If the violation occurs after 10 years, it shall still be considered a second violation, although punished as if a first. 

Section 31-13-9(e)(3) deals with a third violation.  A third violation shall result in any state funded contract being terminated, and the business licenses or permits shall be permanently revoked. 

Section 31-13-9(f)(2) provides that a business entity or employer enrolled in E-Verify and who used the program "shall not be liable under this section for violations resulting from the hiring of that employee". 

Section 31-13-13(a)(4) provides that it shall not be a violation for a "religious denomination having a bona fide nonprofit religious organization in the United States, ...to encourage, invite, call, allow, or enable an alien who is present in the Untied States to perform the vocation of a minister or missionary for the denomination or organization in the United States as a volunteer who in not compensated as an employee, notwithstanding the provision of room, board, travel, medical assistance, and other basic living expenses, provided the minister or missionary has been a member of the denomination for at least one year".

Section 31-13-23(a) provides that the Alabama Department of Homeland Security file an annual report, as opposed to a quarterly report, with the legislature on the status of the progress being made in the effort to reduce the number of illegal aliens in Alabama.

Section 31-13-23(b) requires the ADHS to "create a mechanism for receiving tips from the general public regarding possible violation of this chapter, including the unlawful enforcement of this chapter."

Section 31-13-26 provides that contracts entered into between a party and an alien unlawfully present in the US, "if the party had direct or constructive knowledge that the alien was unlawfully present..." shall not be enforced by any court in Alabama.  Contracts entered into prior to the effective date of the act are not subject to this language. 

Section 31-13-29 defines "public records transaction"as "applying for or renewing a motor vehicle license plate, applying for or renewing a driver's license or nondriver identification card, or applying for or renewing a commercial license, or applying for or renewing a professional license.  Public records transaction does not include applying for a marriage license, any transaction relating to housing under Title 24 or the ownership of real property...or the payment of any other tax to the state or political subdivision thereof...".  An alien unlawfully present in the US "shall not enter into or attempt to enter into a public records transaction...". 

I believe that this new law will result in some additional lawsuits, similar to the ones filed last year, contesting the constitutionality of numerous provisions.  I expect that the courts will enjoin those sections that they have previously enjoined, and the 11th Circuit has stated previously that it will not rule on the merits until after the US Supreme Court rules on the Arizona law, which is expected some time this summer.  Since the law is effective immediately upon signature of the the Governor, I anticipate the lawsuits will be filed shortly.  I will continue to update the status of the new law as these cases wind their way through the courts. 

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HICA may have jumped the gun in stating that the new Immigration Law passed yesterday was vetoed by Governor Bentley.  According to the Gadsden Times, Governor Bentley has not vetoed the bill yet, and asked the Legislature to consider changing 2 aspects of the bill that was passed yesterday.  Bentley indicated he may veto the bill if the changes are not made.  More to follow. 

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According to the Hispanic Interest Coalition of Alabama, Governor Bentley has vetoed the new immigration bill passed by the legislature last night.  HICA also reports that Governor Bentley has added Immigration to the issues for the special session which began this morning.  I will update the status as I find out more about it. 

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Several mid-week updates on a variety of topics.

IMMIGRATION. 

     The U.S. Supreme Court is hearing oral argument on Arizona's immigration law today.  Their opinion(s) are expected in several months.  I will update you on this topic once a decision is rendered. 

     In the meantime, the Alabama Legislature is working on potential amendments to HB56.  I have not reported on this, and will not, until it becomes law.  When and if the Legislature approves revisions that Governor Bentley will sign, I will compare the new and old laws as they pertain to employment issues.

FACEBOOK PASSWORDS. 

     There has been a lot of publicity about whether or not companies can ask employees or prospective employees for passwords to their Facebook and other social media accounts.  Maryland is the first state to pass a law prohibiting this practice, although as of this time, the Governor has not signed it into law.  Many other states are considering passing such laws.  Some members of Congress are also looking into this issue, including asking the EEOC to determine if asking for passwords is coercion which could be in violation of the Computer Fraud and Abuse Act or the Stored Communications Act.  

     For employers that do ask for passwords to social media sites, and actually look at them, caution is advised.  Learning too much information can lead to lawsuits.  Is the employee/prospective employee a member of a protected class, such as pregnant, disabled, etc? By disciplining or refusing to hire such a person, claims could be made for alleged violations of Title VII, Pregnancy Discrimination, GINA, ADA, and other laws.  The NLRB, which is extremely active right now, may consider this practice to be a violation of the NLRA, by discouraging employees from concerted activity: communicating about the terms and conditions of their employment.  This could lead to a push for unionization by the workforce at employers who ask for passwords

UNIONIZATION. 

          Speaking of unionization, April 30 is the effective date for the new rules about how unions can be formed.  Yesterday, the Senate blocked an attempt to delay the implementation of the rules.  There is currently a lawsuit filed by the U.S. Chamber of Commerce, but as of now, there has been no court ruling staying the implementation of the new rules.  I posted about the new rules on December 7. 

 EEOC RULES ON TRANSGENDER PROTECTION. 

     The Los Angeles Times reported today that the EEOC has ruled that transgender individuals may file claims under Title VII.  Mia Macy worked for the Phoenix Police Department and worked with an ATF ballistics team while they were in Phoenix.  At the time Macy applied for a job and was accepted, pending a background check, with the ATF, she was a male.  After applying, Macy went through a transition and became a female.  Macy and her wife moved to California for the new job, but was told the job had been eliminated due to budget cuts.  In fact, the job had been filled with someone else.  Macy filed a complaint with the EEOC alleging sex and gender discrimination.  The EEOC, which had been inconsistently enforcing Title VII in cases involving transgender claims, used Macy's case to clarify it's position that Title VII does apply to claims involving transgender discrimination, and will now allow transgender individuals to file charges in all jurisdictions.  The EEOC's enforcement activities will apply in both the public and private sectors. 

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HB 56 Update.  April's Fools day.  My birthday.  Mandatory use of E-Verify for all employers in Alabama.  April 1 is the magical day for all of these.  Over the past month, I have had many clients asking questions about what they need to do to comply with HB 56 and the E-Verify requirements.   The E-Verify provisions of HB 56 were not challenged in court, and thus are the law.  Since September 1, 2011, when the law became effective, it has been illegal to knowingly employ, hire or continue to employ an unauthorized alien.  All businesses and entities doing business with the state, any political subdivision of the state or any state funded agency were required to start using E-Verify as a condition of an award of such a contract effective January 1.  I have seen a number of forms used by various public entities that they have sent out to their contractors that must be completed in order to continue doing business.  As of April 1, all employers and business entities, which are broadly defined, must use E-Verify for all new employees that are hired.   Violations can lead to severe consequences, including the permanent revocation of all business  licenses and permits throughout the state for a third violation. 

As I have previously posted, E-Verify CANNOT be used for existing employees, and must be used within 3 days after the new employee is hired. E-Verify DOES NOT take the place of I-9 forms:  they too must be completed withing 3 days of a new employee being hired.  I have stated before, and will state again, that I-9's should be audited to make sure that they are in compliance with federal law.  Any such audit should be done by someone knowledgeable with I-9's, because an improper audit or improper corrections may cause more of a problem then if nothing was done. 

NLRB Poster Update.  Another reminder:  the NLRB's required poster language takes effect on April 30.  I have previously posted about this requirement in detail. 

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As reported yesterday, the 11th Circuit enjoined Sections 27 and 30 of HB 56.  After reading the very short Order, there is not much more to add.  The Order, just barely over one page long, has no reasoning or opinion other than ":We conclude that the plaintiffs in these matters have met their burden as to"...these 2 sections. 

Section 27 provides in substance that an Alabama court cannot enforce the terms of a contract between a party and an alien unlawfully present in the US if the party had direct or constructive knowledge that the person was in the US unlawfully at the time the contract was entered into, and the contract required the alien to remain unlawfully in the US for more than 24 hours after the time the contract was entered into or performance could not reasonably be expected to occur without such remaining.  This section does NOT apply to a contract for lodging for one night, the purchase of food to be consumed by the alien, a contract for medical services or a contract for transportation if it is intended to facilitate the alien's return to his or her country of origin.

Section 30 prohibits an alien not lawfully present in the US, or a person acting on their behalf,  from entering or attempting to enter into a business transaction with the state or a political subdivision of the state.  Any person entering into a business transaction with the state or political subdivision of the state shall be required to demonstrate his/her US citizenship, or if an alien, their lawful presence in the US.  A violation of this section is a class C felony.  The court interprets Section 30 as prohibiting unlawfully present aliens from contracting with state and local governments, applying for or renewing drivers' licenses and identification cards, and applying for and renewing motor vehicle license plates. 

Practice pointer.  It looks like all the paperwork that has been distributed by state or local agencies concerning compliance with the law may be unnecessary at this time.  I know that many businesses have completed affidavits of compliance pursuant to Section 30.  Remember, that the E-Verify provisions of HB 56 have not been challenged and are still in place:  all businesses contracting with state or other public entities were required to use E-Verify as of January 1, 2012, and ALL BUSINESSES must use E-Verify for new employees on or before April 1, 2012. 

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Although the 11th Circuit said it would wait until after the U.S. Supreme Court ruled on Arizona's immigration law to rule on HB56, the Court issued an order blocking 2 more provisions of HB56.  According to Al.com  the Court blocked the implementation of the sections barring  "residents from knowingly entering into contracts with illegal immigrants and ban illegal immigrants from entering business transactions with state and local governments."  I have not yet read the opinion, but will give more details once I can review it. 

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According to AL.com, the 11th Circuit has stated that it will not rule on Alabama HB 56 or Georgia's immigration law until after the United States Supreme Court rules on Arizona's immigration law.  Oral argument before the Supreme Court is scheduled for April 25, and I anticipate that the decision will be released some time this summer, probably in June. 

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The 11th Circuit Court of Appeals is hearing oral argument today on Alabama's Immigration law as well as Georgia's Immigration law.  The question is when will they issue their written opinions?  Some are speculating that it will be after the United States Supreme Court rules on Arizona's immigration law, which will probably be early summer.  Oral argument  before the Supreme Court is scheduled in late March.  Others think the opinions will be released prior to that.  I will keep you updated when the Supreme Court and the 11th Circuit rule. 

Recently, the Birmingham News reported that Immigrants are beginning to trickle back into Alabama.  It was reported that since some of the immigration law's provisions were blocked, and the federal government is not engaged in the mass deportation of unauthorized aliens, many are returning to Alabama, although it is more difficult to find jobs.

It will become even more difficult to find jobs starting April 1, when HB 56 REQUIRES all employers in Alabama to use the E-Verify system.  As stated in earlier blog entries, E-verify can only be used for new hires, and not for existing employees.  Could there be an increase in the hiring of unauthorized aliens prior to April 1 to avoid checking them through E-Verify?  Only time will tell. 

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The Atlanta Journal Constitution reported today that a football recruit will not be attending the University of Georgia.  Chester Brown, a 6'5" 340 pound offensive lineman is the son of Samoan immigrants.  Although his mother insists that he was born in the United States, which would make him a citizen, it appears as if Brown is not able to provide documentation proving where he was born.  The Georgia Board of Regents adopted a policy in October, 2010 which states that an undocumented student cannot take the place of an "otherwise academically qualified Georgia resident who has been turned away because of capacity constraints".  This policy was adopted after a Kennesaw State student was arrested for a minor traffic incident, and it was discovered that she was an undocumented Georgia resident, but had been paying in-state tuition.  What would happen if this occurred in Alabama?

As I have written in the past, employers with state or other public entity contracts are required to use E-Verify.  I have spoken with a number of such employers, and they are being provided paperwork by the state, counties and cities that needs to be completed before the contract can be entered into, no matter how big or small the contract amount.  This paperwork includes "Affidavit of Alabama Immigration Law Compliance by a Contractor or Grantee" and an "Affidavit of Alabama Immigration Law Compliance by a Subcontractor or Grantee".  Some entities are requiring that the employer provide a copy of the Memorandum of Understanding concerning the use of E-Verify.

Social media update.  For those of you in north Alabama, I will be presenting a talk on February 29 on the impact of Social Media in the workplace.  The seminar, put on be Sterling Education Services, Inc. will be at the Marriott Huntsville.  For more information or to register for this seminar, visit the Sterling Website. 

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Happy New Year to everyone.  2012 begins with more weird stuff in the employment world, which is actually pretty normal. 

Lady Gaga sued for overtime.  In New York, Lady Gaga has been sued by her ex-personal assistant for overtime.  Jenifer O'Neill sued Mermaid Touring, Inc, Lady Gaga's company, on December 14, 2011, seeking almost $380,000 in unpaid overtime for 4 weeks in 2009 and 52 weeks in 2010 and 2011.  The allegations in the suit are Ms. O'Neill was responsible for attending to Lady Gaga's needs "not only in her home, but also during her travels for her global concert tours, from city to city throughout the world, at locales, including stadiums, private jets, fine hotel suites, yachts, ferries, trains and tour buses. Plaintiff was always behind the scenes, and figuratively, if not literally, always at her side."  Her job duties included confirming Lady Gaga's schedule, reviewing and reconciling her credit card statements, "ordering meals and ensuring that they were correctly prepared and served at specific times; maintaining the principal's personal supplies, ensuring the availability of chosen outfits; ensuring the promptness of a towel following a shower; and serving as a personal alarm clock to keep [Lady Gaga] on schedule".  Ms. O'Neill is alleging that she was on call 24 hours a day, seven days a week:  she was responsible for "maintaining [Lady Gaga] on her desired schedule from the earliest waking hour, for being responsive to the slightest need throughout the day, and for addressing spontaneous, random matters in the middle of the night."    O'Neill was paid a salary of $75,000 per year.  This lawsuit sheds some light into the glamorous life of a pop star, and it will be interesting to see how it is resolved.

President Obama announces 3 recess appointments to NLRB.   On a more serious note, the NLRB issued a press release on January 4 announcing President Obama's intent to recess appoint Sharon Block(a democrat), Terence Flynn(a republican) and Richard Griffin(a democrat) to fill the 3 vacant seats on the NLRB.  Ms. Block worked for Senator Kennedy, was a senior attorney at the NLRB for a number of years, and currently serves as Deputy Assistant Secretary for Congressional Affairs at the U.S. Department of Labor.  Mr. Flynn is currently serving as Chief Counsel to NLRB Board Member Brian Hayes.  Mr. Griffin is General Counsel for the International Union of Operating Engineers.  Since 1983, he has served on the board of directors for the AFL-CIO Lawyers Coordinating Committee.

Practice pointer.  These appointments will give the Board it's 5 members, 3 democrats and 2 republicans.  Over the past year, the NLRB has been very active and, in my opinion, very pro-Labor.  I anticipate these recess appointments will be contested, but if they stand, the NLRB will continue to be active and pro-Labor.

Did ICE Mistakenly Deport a 14 year old runaway?  WFAA in Dallas broke a story this week about 14 year old Jakadrien, a 14 year old who ran away from her Dallas area home in the fall of 2010.  She ended up in Houston, where she was arrested by police for theft.  She provided the police a fake name, and when the name was run through the computer system, it was the name of a 22 year old illegal immigrant from Colombia, who had outstanding warrants for her arrest.  ICE was called in, and although she spoke no Spanish, she was deported to Colombia.  Upon her arrival in Colombia, she was provided a work card by the government and released.  U.S. authorities got involved, and asked the Colombian police to pick her up.  She is currently in a Colombian detention facility, and the Colombian government won't release her at this time. 

Practice pointer.  Although this story is just breaking and a lot of information is still sketchy, questions are being raised over how and why ICE deported a 14 year old U.S. citizen to Columbia.  You can read more about it at WFAA, NY Daily News, andUSA Today.

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Yesterday, I published a blog entry advising that the State of Alabama had asked the 11th Circuit to stay oral arguments scheduled the last week of February/first week of March to in light of the U.S. Supreme Court agreeing to hear an appeal on Arizona's immigration law.  Today, the 11th Circuit announced that it would not stay the appeal pending a Supreme Court decision.  I anticipate the oral arguments will be held as scheduled, although the written decision may be delayed until after the Supreme Court hears oral arguments and/or issues a written decision on the Arizona law. 

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As we prepare to bring to an end 2011, I want to wish all of you a Merry Christmas, Happy Hanukkah, Happy Holidays, and a Happy and Healthy New Year.  2012 will continue to bring many changes in the employment arena, including the following:

Immigration Law: HB 56.  A reminder that any business that has contracts with the State of Alabama must begin using E-Verify effective January 1, 2012.  All employers are required to use E-Verify on or before April 1, 2012.  At this time, the 11th Circuit Court of Appeals has scheduled argument on the appeal of Judge Blackburns' orders enjoining parts of HB56.  In light of the Supreme Court's decision to accept an appeal of Arizona's law, Alabama has asked the 11th Circuit to stay the appeal, while the Plaintiffs, including the Department of Justice, have asked to go forward.  I will continue to post on my blog as the case winds it way through the courts. 

NLRB.  A reminder that the NLRB is requiring a new poster to be posted in the workplace effective January 31, 2012.  I summarized the poster requirements in a prior blog entry.

11th Circuit issues 2 new discrimination decisions.  In August, 2010, I posted an entry entitled "The Case that Never Ends".  Tyson was sued by Mr. Hithon, a black employee, alleging that the use of the word "boy" by his supervisor constituted racial harassment.  The court previously held in favor of Tyson.  Just last week, the 11th Circuit revisited this case, and reversed the prior decision, awarding Hithon $364,000.  Interestingly, as the Republican Presidential primary season officially starts, one of the issues being discussed is judicial activism.  The Atlanta Journal Constitution reports that the prior decision had been condemned by 11 civil rights pioneers, who had filed a brief with the court linking the use of the word "boy" to slavery.  The court found that the use of the word "boy" in and of itself was not discrimination, but the facts surrounding the use of the word "boy" in this case was sufficient to find in favor of Mr. Hithon. 

The 11th Circuit also issued a decision 2 weeks ago, in the case of Glenn v. Brumby, addressing harassment of an individual diagnosed with gender identity disorder.  Mr. Glenn was born a biological male, and subsequently diagnoses with gender identity disorder.  He/she began working for the Georgia General Assembly's Office in 2005 as a male, but in the fall of 2007 advised his/her supervisor that he/she was undergoing a gender transformation and would be coming to work as a female.  Glenn was subsequently discharged, and filed a claim alleging sex discrimination and discrimination based on her medical condition.  The trial court granted summary judgment in favor of the employee on the sex discrimination claim, and in favor of the employer on the medical condition claim.  On appeal, the 11th Circuit reversed the summary judgment in favor of the employer, and found that all persons, whether transgender or not, are protected from gender based discrimination by government agents, and that discriminating against someone on the basis of gender non-conformity constitutes sex based discrimination.  It should be noted that  the supervisor testified that "he fired Glenn because he considered it inappropriate for her to appear at work dressed as a woman and that he found it unsettling and unnatural that Glenn would appear wearing women's clothing."

Theft by Employees.  2 articles caught my attention today concerning theft by employees.  This continues to be a problem for all employers.  First, Al.com reports that Walter Skrobak, the former head security guard at the McCalla OfficeMax Powermax Facility,  pleaded guilty to stealing over $600,000 of computer software.  Between October 2008 and November 2010, he stole at least 1,600 units of computer software and sold them, via Pay Pal, to a party residing out of state for nearly $400,000. 

In New York, 3 employees stole almost $58,000 of lingerie from a Victoria's Secret Store.  An internal investigation reveals that the thefts occurred over the last 6 months.  Incredibly, one of those arrested stated that "My heart dropped when I saw that figure on the Internet...They exaggerated a lot, trust me.  They must have charged like full price for everything, and doubled the sales tax".  He admits that he only pocketed $800 during the 6 month crime spree. 

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The US Supreme Court announced today that it will hear arguments on Arizona's controversial Immigration Bill.  The 9th Circuit Court of Appeals had struck down several provisions of the law, including a provision that makes it a crime not to carry alien registration papers, the provisions that make it a crime for an illegal immigrant to solicit or apply for work, and the portion that requires a police officer to determine the immigration status of a person arrested if there is reasonable suspicion to believe that he or she is in the country illegally.  These provisions are similar to provisions in HB56, the Alabama Immigration Bill.  It is expected that oral arguments will be held in April, and a decision on the Arizona law should be issued by the end of June.  Although this appeal only applies to the injunction issued to stop the implementation of parts of Arizona's law, I anticipate that the Supreme Court's decision will provide guidance to Alabama, and other states, that have enacted immigration laws over the last several years. 

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Before I get started, I would like to thank all of our Veterans and active service members, and their family members,  for their service to our country and the sacrifices they have made to make our country a better and safer place. 

You can now follow me on Twitter  @DanielBurnick.

FLSA Issues continue to plague employers.  Over the years, I have written about the problems associated with employers not properly paying their employees.  (October 18, 2011, May 10, 2011, August 17, 2010, July 2, 2010, June 3, 2010 and February 21, 2010).  Recently, the Mobile Press Register ran a story pointing out that wage and hour litigation was up 18% in 2010, and the upward trend is expected to continue during 2011 and into 2012.  The problems include misclassification of employees as exempt when they should be non-exempt, the misclassification of employees as independent contractors, and failure to pay overtime for any work performed in excess of 40 hours a week.  As pointed out in the Mobile Press Register's article, "review your compensation practices", "verify your record keeping", make sure your records are accurate, and make sure overtime is paid properly. 

Practice pointer.  As we head towards the end of another year, now is the time to do an audit of your policies and procedures to verify compliance with the FLSA, and train all your employees on these issues.

E-VERIFY and unintended consequences.  Recently, Bloomberg Businessweek ran an article entitled "A Verification System for New Hires Backfires".  In this article, a number of examples are given where employers who have enrolled in the E-Verify system have had trouble finding enough workers to do the work.  About 5% of the companies, around 300,000, use E-Verify.  This number will go up as states around the country implement the mandatory use of E-Verify for all employers.  In North Carolina, a local flower wholesaler implemented E-Verify, and the owner reports that he could not find enough workers:  "Those who want to work fail to pass E-Verify, and those who pass fail to work."  In Arizona, which made E-Verify mandatory in 2008, worker shortages have been reported in the construction industry and the food service industry.  One way employers are trying to avoid the mandatory use of E-Verify is to misclassify workers as independent contractors.  A Congressional Budget Office report from 2008 estimates that the mandatory use of E-Verify on a national basis would result in the loss of over $17 billion in federal tax revenue. 

Practice pointer.  Employers who attempt to avoid the mandatory use of E-Verify in Alabama are subjecting themselves to potential exposure under many different laws:  Alabama's Immigration law, which may result in the loss of business licenses, claims for overtime under the FLSA, and tax liability under both state and federal laws. 

Unusual excuses to take a sick day.  CBS Moneywatch had an interesting article discussing the most unusual excuses to take a sick day.  Some of them I have actually seen being used.  The article refers to a CareerBuilder survey showing that 29% of employees admitted to calling in sick when they were fine.  I expect the actual number to be higher.  The study also showed that 15% of employers have fired an employee for calling in sick when they were not, and 28% of employers admitted to checking up on employees who they thought may not have been sick.  Checking up included requiring a doctor's note (69%), calling the employee at home (52%), having another employee call (19%), and driving by the employee's house (16%).  Some of the unusual excuses listed included a deer bite during hunting season, the kidnapping of a relative in Mexico, drinking anti-freeze by mistake and going to the hospital, and an employee's 12 year old daughter stealing a car so the employee could not get to work.

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According to Al.com, on Friday, November 4, 2011, Judge Johnny Hardwick, a Montgomery County Circuit Court Judge, dismissed a lawsuit filed by a number of plaintiffs, including 2 unauthorized aliens and 2 Hispanic U.S. citizens.  The dismissal came at the request of the plaintiffs. This does not impact the current cases that were appealed to the 11th Circuit Court of Appeals which I have written on previously. 

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On Monday, October 24, Jefferson County Presiding Judge Scott Vowell entered an order declaring that Section 27(a) of the Immigration Act unconstitutional.  This section provides that "No court of this state shall enforce the terms of, or otherwise regard as valid, any contract between a party and an alien unlawfully present in the United States, if the party had direct or constructive knowledge that the alien was unlawfully present in the Untied States at the time the contract was entered into...."  Judge Vowell referenced Section 95 of the Alabama Constitution, which provides that "There can be no law of this state impairing the obligations of contracts by destroying or impairing the remedy for their enforcement....After suit has been commenced on any cause of action the legislature shall have no power to take away such cause of action, or destroy any existing defense to such suit."  Judge Vowell found that since the lawsuit was commenced before HB 56 was passed and signed into law, Section 27(a) would not apply to the pending action.  Judge Vowell went on to state that "The Court declares that Section 27(a) of the Act violates the Alabama Constitution of 1901, to the extent the Legislature has attempted to take away an existing cause of action in a pending lawsuit."  As such, this ruling ONLY APPLIES to lawsuits filed before HB 56 became effective.  Also, this ruling is technically only binding on actions pending in Jefferson County, although other counties may rely on Judge Vowell's opinion.

Practice pointers.  The ruling declaring Section 27(a) unconstitutional only applies to cases filed before the HB 56 became effective.  After Judge Vowell overruled that Defendant's Motion to Dismiss, the parties settled the case, so an appeal of this order is very unlikely.  I anticipate that other courts may examine the constitutionality of Section 27(a) in cases filed after the effective date of HB 56.  The Federal Courts did not enjoin the enforcement of Section 27(a) in the federal litigation. Also, remember that a lawsuit challenging the constitutionality of HB 56 is still pending in State Court in Montgomery, and that judge has not yet ruled. 

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On Friday, October 14, the 11th Circuit Court of Appeals entered an order enjoining the enforcement of two more sections of Alabama's new immigration law.  The Court enjoined the enforcement of Section 10, which states  "(a)  In addition to any violation of federal law, a person is guilty of willful failure to complete or carry an alien registration document if the person is in violation of 18 USC Section 1304(e) or 8 USC Section 1306(a), and the person is an alien unlawfully present in the United States." 

The Court also enjoined the enforcement of Section 28 which addresses elementary and secondary school students and requires schools to determine at enrollment whether the student was born outside the US or is the child of an alien not lawfully present in the US, and qualifies for assignment to an English as Second Language class or other remedial program.  If upon review of the student's birth certificate, it is determined that the student was born outside the US or is the child of an alien not lawfully present in the US, the parent, guardian or legal custodian shall notify the school of the student's citizenship or immigration status.  Each school district is required to collect and compile this data and submit it to the State Board of Education as an annual report.  HB 56 PROHIBITS the public disclosure of any information which personally identifies any student,with some limited exceptions.  The student will not be prohibited from attending school if he/she is not legally in the country.

The following provisions were enjoined by Judge Blackburn:  8, 10(e), 11(a), 13, 16 and17, and the 11th Circuit did not lift the injunction as to these provisions.

Practice pointer.  As the Court pointed out in the opinion, this decision does not bind the merits panel, which will review the case after full briefing and oral argument. 

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Alabama Department of Public Health delays licensing process.

Recently, the Alabama Department of Public Health sent letters to all businesses it regulates advising them that the renewal of licenses for 2012 and the processing of new licenses has been impacted by the new Immigration Law. The ADPH is taking the position that the license is a public benefit, and thus covered by the law.  ADPH believes that it will take 2-4 weeks to determine what needs to be done to comply with the law to show that individual owners of regulated businesses are citizens or legally present in Alabama.  With a calendar year renewal process, it is likely that there will be delays in issuing 2012 licenses.  A similar situation occurred for 2011 licenses, when the licenses were required to be printed on a new type of paper, and many licenses were not issued until March, 2011.  Among those businesses impacted by the ADPH are abortion clinics, hospitals, ambulatory care centers, end stage renal disease facilities, hospice, home health care, rehabilitation centers, sleep disorder clinics and restaurants. 

Practice pointer.  I anticipate that the licensing process will be delayed into 2012, and regulated businesses will need to continue operating with licenses that technically expire in 2011.  Also, those regulated by the ADPH will need to comply with whatever new forms and documents are adopted.  Finally, ADPH, already short staffed, will incur additional time and expense in complying with the law.  We have already seen the impact on drivers licenses.  Be on the lookout for other state agencies that will be implementing new requirements for licenses, such as building trade licenses (plumbing, electrical, HVAC, etc), Department of Mental Health, Medical Board, Nursing Board, etc.

First Immigration Convictions Reported

Al.com is reporting that 4 individuals were arrested following 2 traffic stops in Decatur late Sunday/early Monday.  The 4 pleaded guilty to misdemeanor charges of not having proper documentation.  They were sentenced to a 30 day suspended jail term and fined $300 plus court costs.  They are being held in custody pending a decision by federal immigration authorities as to whether they will be deported or not. 

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Immigration

     On Wednesday, October 5, Judge Blackburn denied requests made by the Department of Justice and a coalition of civil rights groups to delay implementation of HB 56 while on appeal.  Last week, Judge Blackburn upheld the vast majority of HB 56, while enjoining several provisions of the law.  The groups will be appealing to the 11th Circuit Court of Appeals, and have stated that they may seek a stay from the 11th Circuit to prevent the law from staying in effect pending the appeal.  I will post updates as they occur.

     In the meantime, there are numerous reports of students leaving schools throughout the state, workers leaving their jobs and several arrests have been made pursuant to HB 56.  Interestingly, the first arrests reported arose from a drug bust, and those arrested were from Yemen, and were not Hispanic.

NLRB

     I have previously reported that the NLRB was going to require the posting of Notification of Employee Rights effective November 14, 2011.  Because there appears to be much confusion over what businesses were covered by this requirement, the NLRB has delayed implementation of the posting until January 31, 2012.  At least 3 lawsuits have been filed seeking to prevent the NLRB from requiring this posting. 

Social Media and the NLRB

     The NLRB has been active in reviewing terminations or other disciplinary action as the result of social media posting.  I reported in February that the NLRB had contested the termination of an employee at an ambulance company.  Another social media firing case involved a BMW dealership in Chicago, where an employee posted negative comments about one of the dealership's events, when they planned to bring a hot dog cart to provide food to customers.  The salesman complained that the dealership should provide better food for it's customers.  This same salesman also took pictures of an accident that occurred when a customer was test driving a BMW and hit the accelerator instead of the brake pedal, and crashed.  These photos were posted at the same time he posted pictures of the hot dog cart.  The dealership learned of the postings the next day, and terminated the salesman.  The NLRB claimed that the posts were protected concerted activity since part of the salesman's compensation was customer satisfaction, and the postings about the hot dog cart concerned his compensation.  The NLRB administrative judge ruled that the posting about the hot dog cart was protected, but found that the posting about the accident was not, and that the dealership terminated is employment based on the accident related posting. 

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Judge Blackburn entered Orders and Memorandum Opinions in 3 different cases:  USA v. State of Alabama (2 page Order, 115 page Memorandum Opinion), Rt. Rev. Henry Parsley, Jr. v. Robert Bentley (1 page Order 13 page Memorandum Opinion) and Hispanic Interest Coalition of Alabama v. Robert Bentley (2 page Order and 106 page Memorandum Opinion).  These cases sought Preliminary Injunctions preventing the implementation of various parts of the Immigration Law.   House Bill 56, approved by the Alabama Legislature on June 2, signed into law by Governor Bentley on June 9, is referred to as the Beason-Hammon Alabama Taxpayer and Citizen Protection Act.  I will address each of these cases in order as set forth above. 

In the case of United States v. State of Alabama, the court found that "the purpose of a preliminary Injunction is merely to preserve the relative positions of the parties until a trial on the merits can be held....A preliminary injunction is an extraordinary and drastic remedy; it is never awarded as of right".

The court found that the US did not meet it's burden of proof as to Sections 10, 12(a), 18, 27, 28 and 30 of HB 56.  As such, these provisions, subject to a possible stay on appeal, are in effect as of today.

Section 10 states:  "(a)  In addition to any violation of federal law, a person is guilty of willful failure to complete or carry an alien registration document if the person is in violation of 18 USC Section 1304(e) or 8 USC Section 1306(a), and the person is an alien unlawfully present in the United States."  The court found that Section 10 "creates Alabama state crimes for unlawfully present aliens who engage in conduct that constitutes existing federal crimes under the INA (The Immigration and Nationality Act) .

Section 12(a) "sets forth circumstances under which state, county and municipal law enforcement officers must attempt to verify the citizenship and immigration status of persons detained or arrested."  "Upon any lawful stop, detention, or arrest made by any state, county or municipal law enforcement officer....where reasonable suspicion exists that the person is an alien who is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the citizenship and immigration status of the person, except if the determination may hinder or obstruct an investigation."

Section 18 amended Alabama Code Section 12-6-9 which requires one to have in his or her immediate possession ones drivers'  license. HB 56 provides that if a law enforcement officer arrests a person for a violation of this section, and is unable to determine by other means that the person has a valid drivers' license, the officer shall transport the person to to the nearest or most accessible magistrate.  A verification inquiry shall be made within 48 hours to the Law Enforcement Support Center of the United States Department of Homeland Security.If the person is determined to be an alien unlawfully present in the US, the person SHALL be considered a flight risk and SHALL be detained until prosecution or until handed over to federal immigration authorities.

Section 27 provides in substance that an Alabama court cannot enforce the terms of a contract between a party and an alien unlawfully present in the US if the party had direct or constructive knowledge that the person was in the US unlawfully at the time the contract was entered into, and the contract required the alien to remain unlawfully in the US for more than 24 hours after the time the contract was entered into or performance could not reasonably be expected to occur without such remaining.  This section does NOT apply to a contract for lodging for one night, the purchase of food to be consumed by the alien, a contract for medical services or a contract for transportation if it is intended to facilitate the alien's return to his or her country of origin.

Section 28 deals with elementary  and secondary school students, and requires schools to determine at enrollment whether the student was born outside the US or is the child of an alien not lawfully present in the US, and qualifies for assignment to an English as Second Language class or other remedial program.  If upon review of the student's birth certificate, it is determined that the student was born outside the US or is the child of an alien not lawfully present in the US, the parent, guardian or legal custodian shall notify the school of the student's citizenship or immigration status.  Each school district is required to collect and compile this data and submit it to the State Board of Education as an annual report.  HB 56 PROHIBITS the public disclosure of any information which personally identifies any student,with some limited exceptions.  The student will not be prohibited from attending school if he/she is not legally in the country.

Section 30 prohibits an alien not lawfully present in the US, or a person acting on their behalf,  from entering or attempting to enter into a business transaction with the state or a political subdivision of the state.  Any person entering into a business transaction with the state or political subdivision of the state shall be required to demonstrate his/her US citizenship, or if an alien, their lawful presence in the US.  A violation of this section is a class C felony.  The court interprets Section 30 as prohibiting unlawfully present aliens from contracting with state and local governments, applying for or renewing drivers' licenses and identification cards, and applying for and renewing motor vehicle license plates. 

In her Order,  Judge Blackburn entered a preliminary injunction PROHIBITING the following sections of HB 56 from taking effect:

Section 11(a) which states "It is unlawful for a person who is an unauthorized alien to knowingly apply for work, solicit work in a public or private place, or perform work as an employee or independent contractor in this state." 

Section 13 which makes it unlawful for a person to "conceal, harbor, or shield or attempt to conceal, harbor or shield...an alien from detection in any place in this state, including any building or means of transportation, if the person knows or recklessly disregards the fact that the alien..." is unauthorized; to encourage or induce an unauthorized alien to come to or reside in Alabama; "transport or attempt to transport...an alien in furtherance of the unlawful presence of the alien in the United States"; or to harbor an unauthorized alien by entering into a rental agreement to provide accommodations to him/her.

Section 16 which prohibits a business from taking "as a deductible business expense for any state income or business tax purposes in this state" any wages or compensation paid to an unauthorized alien.  Section 16 also imposes a penalty equal to 10 times the business expense deduction. 

Section 17 which makes it a "discriminatory practice for a business entity or employer to fail to hire a job applicant who is a US citizen or an alien who is authorized to work in the US....while retaining or hiring an employee who the business entity or employer knows, or reasonably should have known, is an unauthorized alien."  Section 17 also has an attorney fee shifting provision, which is rare in Alabama. 

The sections of HB 56 addressed by Judge Blackburn in her Order and Memorandum Opinion are detailed above.  She did not address the following sections of HB 56 in this case:

Section 1:  Naming the law

Section 2:  Setting forth the legislative intent.

Section 3:  Setting forth definitions of various words and phrases

Section 4:  Authorizing the Attorney General to attempt to negotiate a Memorandum of Understanding between Alabama and the US Department of Homeland Security concerning the enforcement of federal immigration laws, detentions and removals, and related investigations.

Section 5:  Prohibiting an official or agency of Alabama from restricting or limiting the enforcement of federal immigration laws by limiting communications between state and federal agencies.

Section 6:  Prohibiting any official or agency of Alabama from interfering with the enforcement of this Act.

Sexton 7:  Prohibiting unlawful aliens from receiving any state or local public benefits.  Permitting individuals to receive various services WITHOUT verification of lawful presence in the US, including primary and secondary school education; obtaining emergency health care items and services; short term, non-cash in kind emergency disaster relief; public health assistance for immunizations; programs and services such as soup kitchens and crisis counseling; prenatal care; and child and adult protective services.

Section 8:  Prohibits an alien not lawfully present in the US from attending any public post secondary education institution in Alabama.  This provision has been enjoined from being enforced in the HICA case.

Section 9:  Requiring, as a condition for the award of any contract, grant or incentive by the state or  political subdivision thereof, that the employer shall not knowingly employ, hire for employment or continue to employ an unauthorized alien and shall attest to it by sworn affidavit.  Section 9 requires the mandatory use of the E-Verify system as of January 1, 2012.  You can read my prior posts for more details about this section and penalties.

Section 14:  Making it a crime to deal in false identification documents, including birth, death, marriage and divorce certificates. 

Section 15:  Making it illegal for all employers to knowingly hire for employment or continue to employ an unauthorized alien to perform work in Alabama.  Section 15 also mandates the use of E-Verify for all business in the state of Alabama effective April 1, 2012.  Again, I have written on this section in more detail in previous posts. 

Sections 19 and 20:  Addresses the arrest and/or conviction of an unauthorized alien.

Section 21:  Stays the provisions of HB 56 for a victim of a crime until all proceeding are concluded.

Sections 22, 23 and 24:  Address various requirements of the Alabama Department of Homeland Security.  

Section 25:  Makes it a crime to solicit someone to violate this act.

Section 26:  Requires Alabama Department of Homeland Security to establish and maintain an E-Verify employer agent service for employers with 25 or fewer employees, which shall be in place within 90 days of the effective date of the act which runs from September 28.  The Alabama DHS shall, every 3 months, request from the US DHS a list of every business entity or employer enrolled in E-Verify make the list available on its website.  

Section 29:  Imposes requirements for voter registration.

In the case of Parsley v. Robert Bentley, the court denied the Amended Motion for Preliminary Injunction as to Section 27. based on lack of standing, and addressed the request for a Preliminary Injunction as to Section 13 by referring to the opinion in the case of United States v. State of Alabama. 

In the case of HICA v. Bentley, the court granted a Preliminary Injunction as to Section 8, the last sentence of Sections 10(e), 11(e) and 13(h), and Section 11(f) and (g).  The court denied the request for a preliminary injunction as to Sections 10 (except the last sentence), 12, 18-20, 27 28 and 30. 

As set forth above in detail, Section 8 prohibits an "alien who is not lawfully present in the United States" from attending or enrolling in an Alabama "public postsecondary education Institution in this state".  The court enjoined the enforcement of this provision.

The last sentence of Sections 10(e), 11(e) and 13(h) are identical:  "A court of this state shall consider only the federal governments verification in determining whether an alien is lawfully present in the United States".  The court enjoined the enforcement of this language.

Section 11(f) and (g) make it illegal 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, and 11(g) which prohibits a person from entering such a vehicle. The court enjoined the enforcement of these provisions.

 Practice pointers.  This is only the first step in what is going to be a long, hard fought battle through the court system, most likely ending up in the Supreme Court.  Many states have already passed immigration laws, and more are considering them.  I expect that these cases will only be over when the Supreme Court addresses the numerous issues raised in the many lawsuits that have been filed around the country. 

As expected, the employment related provisions of Alabama's law have been upheld as of now.  Without a stay on appeal, the provisions are effective as set forth in bill:  E-Verify for state contractors as of January 1, 2012, and all other employers April 1, 2012.  Violations of these requirements may result in the loss of business licenses and permits, so they should be taken seriously.  Now is the time for employers and businesses in Alabama to get ready:  perform I-9 audits, begin using E-Verify as soon as possible, and train the entire workforce as to the immigration issues that exist in the workplace.

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U.S. District Court Judge Sharon Blackburn issued a 115 page order today addressing Alabama's Immigration Law.  The Order upholds most of the Immigration Law, including the E-Verify portions of the law.  Her order prohibits the State from:

1.  Making it illegal for an unauthorized alien to seek work as an employee or independent contractor.

2.  Arresting and charging people with assisting unauthorized aliens, including blocking the provision that makes it illegal to conceal, harbor, transport or encourage an illegal alien to stay in Alabama.

3.  Arresting and charging landlords who rent to unauthorized aliens.

4.  Prohibiting businesses to take a deduction for wages paid to unauthorized aliens.

 An article, including the 115 page opinion, can be found at Al.com.

I will continue to post more information as I review the opinion. 

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As we approach the end of the 2011 Fiscal Year, September 30, the EEOC is once again busy filing suits around the country.  This year, the focus appears to be on the ADA, with over 20 suits being filed over the last 2 months.  These suits include claims involving the following disabilities:  Cerebral Palsy (McDonald's), Alcoholism (Old Dominion Freight Lines), Deafness (McCormick & Schmick's), Asthma (Insource Performance Solutions, LLC and LeGrand North America, Inc.), Epilepsy (Buy-Rite Thrift Store), Blindness (Bank of America and ITT Tech), End Stage Renal Disease (G2 Secure Staff, LLC), Traumatic Brain Injury (Outback Steakhouse), Psoriatic Arthritis (The Scooter Store), Cancer (SITA Information Networking Computing USA and The Area IV Senior Citizens Planning Council, Inc.), Gastro-Intestinal condition (Ford Motor Company), Diabetes (Kohl's Department Stores), Multiple Sclerosis (National HealthCare Corporation), a Double Amputee (J.A. Thomas and Associates), Fibromyalgia (The Children's Hospital in Colorado)and Hearing Impaired (Jewish Community Center of Greater Washington).  As you can tell, these lawsuits have been filed against companies big and small, for profit and non-profit, across the country and in many different industries.  These lawsuits come on the heels of a $75,000 settlement reached between the EEOC and Starbucks as the result of a dwarf barista, who needed a stepladder or stool to reach the coffee machines, who was fired after 3 days on the job. For a complete listing of 2010 press releases by the EEOC, you can visit their website.

Yesterday, in Texas, the EEOC filed a lawsuit against Bass Pro Shops alleging that stores in Houston, Louisiana and Alabama illegally discriminated against Black and Hispanic workers and job applicants, and retaliated against employees who raised questions and destroyed records.  The investigation began 6 years ago, and in April, 2010, the EEOC issued a Cause Determination finding that Bass discriminated against its' employees and applicants.  After attempting to negotiate a resolution since then, which was not successful, the EEOC filed its' lawsuit. 

Practice pointer.  The EEOC continues to be very aggressive in pursuing lawsuits around the country alleging numerous causes of action over which they have jurisdiction.  Getting sued by the EEOC is expensive, time consuming and can lead to negative publicity.  When an employer receives notice of a charge, it is important that the company take the appropriate steps to protect itself, from conducting an investigation, taking the appropriate corrective actions if necessary, responding to the charge in the proper manner, and treating the process with the time and attention it needs.  Failure to do so can lead to a disaster.

E-Verify.  Recently, I gave a presentation to the Greater Birmingham Apartment Association.  The use of E-Verify must be consistent with the Memorandum of Understanding (MOU) signed by the employer, Department of Homeland Security and the Social Security Administration.  One of the requirements in the MOU is that E-Verify cannot be used until after the employee is hired.  One of the attendees indicated that they use a third party to do background checks, criminal checks and use E-Verify.  When a company uses such a third party, it is important that E-Verify be used after hire, and not a part of the pre-employment screening.  I would also recommend that the employer review the MOU that the third party has with DHS and SSA.  The employer should also review the contract, if any, between it and the third party, to confirm that they are operating in compliance with the E-Verify program and with Alabama's new Immigration Law, assuming the E-Verify portions are upheld as constitutional.  Finally, on a side note, there was an interesting article published in the Wall Street Journal yesterday reporting an interesting coalition of liberals, conservative, Tea Party members and Libertarians who are against Congress passing a bill requiring the mandatory use of E-Verify by all employers in the United States.

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Judge Blackburn issued an order on August 29,2011 TEMPORARILY ENJOINING the enforcement of Alabama's Immigration law.  Judge Blackburn specifically stated that her Order in no way addressed the merits of the pending lawsuit.  The Temporary Injunction will expire on September 29, 2011 or until Judge Blackburn rules on the merits, whichever comes first.

I will post more on my blog as we get closer to September 29 or when a ruling is made on the merits.  .

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What Does Alabama's Immigration Law Mean For Alabama Business?

The Beason-Hammon Alabama Taxpayer and Citizen Protection Act was signed by Governor Bentley on June 9, 2011, and parts of it become effective on September 1.  Since that time, there have been at least 4 lawsuits filed, numerous news stories, rallies, and protests, and many have mischaracterized the law.  Three of the lawsuits are pending in Federal Court, and have been consolidated before Judge Blackburn:  the fourth is pending in state court in Montgomery.  On Wednesday, August 24, a 7 hour hearing was held before U.S. District Judge Sharon Lovelace Blackburn concerning the legality of Alabama's Immigration Law.  Much of the argument centered on the criminal provisions of the law, and concerns of religious leaders.  Most importantly for businesses in Alabama, the E-Verify portion of the law was NEVER mentioned during the arguments.  Although it is difficult, if not impossible to predict how Judge Blackburn will rule, because the United States Supreme Court has already ruled that Arizona's E-Verify law is constitutional, I expect that this portion of the law will become effective as set forth in the law. This Blast is an attempt to let businesses know what the law requires and how to comply with it in the event provisions pertaining to the employment of workers and the E-Verify portions are found to be constitutional.

EFFECTIVE DATES.  There are 3 dates associated with the law:  1. The effective date for the majority of the law is September 1, 2011.  2.  The effective date for the mandatory use of E-Verify for companies doing business with the State of Alabama is January 1, 2012.  3.  The effective date for all businesses in Alabama to use the E-Verify system is April 1, 2012.  My interpretation of the Act is that the prohibition against employing unauthorized aliens has an effective date of September 1, 2011, with the mandatory use of E-Verify to follow, as set forth above.  Assuming these portions of the Act are held to be constitutional, ALL BUSINESS ENTITIES AND EMPLOYERS must take steps to comply with the law.  The best way to do so is to begin using E-Verify as soon as possible and review all I-9's to make sure they are accurate and complete.  The use of the E-Verify system does not negate companies from using and maintaining I-9 forms, which are still required by federal law.  The E-Verify system combines the US Department of Homeland Security (USDHS), the Social Security Administration (SSA), the Employer, and to a lesser extent, the Alabama Department of Homeland Security.  To use the E-Verify system, companies must have an executed Memorandum Of Understanding(MOU) between USDHS and SSA, and must use the system in compliance with the E-Verify User Manual.  Of particular interest, E-Verify CANNOT  be used to verify the status of existing employees:  only newly hired employees.  In light of this law, as well as the recent increase by Immigration and Custom Enforcement (ICE) in conducting I-9 Audits, it is advisable for Employers to do their own I-9 Audits now to ensure that the I-9's for all employees are complete and accurate.

KEY DEFINITIONS. An "EMPLOYER" is broadly 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 within the State of Alabama, including a public employer."  A "BUSINESS ENTITY" is broadly defined to include profit or not for profit entities, and includes, but is not limited to any business that possesses a business license or permit, or is exempt from operating with a business license or permit, "self-employed individuals, business entities filing articles of incorporation, partnerships, limited partnerships, limited liability companies, foreign corporations…business trusts and any business entity that registers with the Secretary of State." A "CONTRACTOR" is broadly defined as "A person, employer, or business entity that enters into an agreement to perform any service or work or to provide a certain product in exchange for valuable consideration.  This definition shall include, but not be limited to, a general contractor, subcontractor, independent contractor, contract employee, project manager or a RECRUITING OR STAFFING ENTITY".  The Act broadly defines "KNOWS OR KNOWINGLY"  as "A person acts knowingly or with knowledge with respect to either of the following:  a.  The person's conduct or to attendant circumstances when the person is aware of the nature of the person's conduct or that those circumstances exist.  b.  A result of the person's conduct when the person is reasonably aware that the person's conduct is likely to cause that result".

PUBLIC CONTRACTS.   The Act prohibits any business entity or employer doing business with the state, any political subdivision of the state, or any state funded entity from knowingly employing, hiring or continuing to employ an unauthorized alien, and all such business entities and employers "shall attest to such, by sworn affidavit signed before a notary."  As a condition of an award of such a contract, effective January 1, 2012, the business entity or employer MUST be enrolled in the E-Verify program, and they must participate in the E-Verify program during the performance of the contract.  Subcontractors are also required to participate in the E-Verify program, and shall attest to such by sworn affidavit before a notary.  The use of the E-Verify program by the business entity or employer is an affirmative defense to any lawsuit alleging that they are in violation of this Act.  VIOLATIONS of the Act carry severe consequences:  Upon a FIRST VIOLATION, the state entity may terminate the contract.  Additionally, the state entity may petition the Attorney General to take action to suspend the business licenses and permits for a period not to exceed 60 days.  Before a business license or permit can be reinstated, the business entity shall terminate any unauthorized alien workers and file an affidavit stating that they are in compliance with the provisions of the Act and be enrolled in the E-Verify program.  Upon a SECOND OR SUBSEQUENT VIOLATION, the contract shall be deemed breached, shall be terminated, and upon application to the Attorney General, an action may be brought to PERMANENTLY REVOKE THE BUSINESS LICENSES AND PERMITS of the business entity or employer in violation of the Act.  The same punishments apply to subcontractors.  The SECRETARY OF STATE "shall adopt rules to administer this section and shall report any rules adopted to the Legislature."

ALL BUSINESS ENTITIES AND EMPLOYERS.   The Act prohibits any business entity or employer from knowingly employing or hiring an unauthorized alien to perform work within the State of Alabama.  Effective April 1, 2012, "every business entity or employer in this state SHALL enroll in E-Verify…".  A business entity or employer using E-Verify "shall not be deemed to have violated this section with respect to the employment of that employee."  Upon a FIRST VIOLATION by a court, the court shall do all of the following:  1.  order the business to terminate the employee.  2.  Subject the business to a 3 year probationary period, during which time the business SHALL file quarterly reports with the local distinct attorney "of each new employee who is hired by the business entity or employer in the state".  3.  Order the employer to file an affidavit with the local district attorney that the employment of every unauthorized alien has been terminated.  4.  Direct the applicable governing body to suspend the business license and permits for a period not to exceed 10 business days specific to the location where the unauthorized alien performed work.  5.  Reinstate the business license only upon the business filing an affidavit with the court that the business is in compliance with the MOU issued at the time of enrollment in E-Verify.  For a SECOND VIOLATION, the court shall order the applicable governing body to PERMANENTLY REVOKE all business licenses specific to the locations where the unauthorized alien performed work.  For a THIRD OR SUBSEQUENT violation, the court shall order the applicable governing body to FOREVER SUSPEND THE BUSINESS LICENSE AND PERMITS throughout the state.

ENFORCEMENT OF THE ACT.  There is no private cause of action to enforce the provisions of the Act.  Rather, any resident of Alabama may petition the Attorney General to bring an enforcement action against a business entity or employer by submitting a written petition, including 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 AG has 60 days to investigate, and must either file a civil complaint in a court of competent jurisdiction or inform the petitioner in writing that the AG has determined that filing a civil complaint is not warranted.  The Act further provides that no "wage, compensation, whether in money or in kind or in services, or renumeration 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 this state…Any business entity or employer who knowingly fails to comply with the requirements of this section shall be liable for a penalty equal to 10 times the business expense deduction claimed…"

ALABAMA DEPARTMENT OF HOMELAND SECURITY.  The Act requires the Alabama Department of Homeland Security (ADHS) to do a number of things:  1.  Establish and maintain an E-Verify employer agent service for any business entity or employer in Alabama with 25 or fewer employees.  The ADHS "shall establish an E-Verify employer agent account with the USDHS, shall enroll a participating business entity or employer in the E-Verify program on its behalf….and shall not charge a fee to a participating business entity or employer for this service".  2.. The ADHS shall, by November 29, 2011, have the employer agent service in place.  3.  Every three months, the ADHS shall request from the USDHS a list of every business entity or employer in Alabama that is enrolled in the E-Verify program, and make this list available on its website. 

CONCLUSION.  The Alabama Taxpayer and Citizens Protection Act is in its infancy, and will be fought in the courts for a long time.  I have not addressed a number of provisions of the Act, including criminal activity, education, medical care, transporting unauthorized aliens, harboring unauthorized aliens and falsifying documents. 

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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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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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 The Advocate, a Baton Rouge, Louisiana newspaper,  reports that the National Federation of  Independent Business announced that the Immigration and Customs Enforcement (ICE) division of Homeland Security will be inspecting the hiring records of 180 employers in Louisiana, Mississippi, Alabama, Arkansas and Tennessee.  The purpose of the inspections is to ensure that the employers are following immigration laws and regulations.  Technical violations can result in fines ranging from $110 to $1,100 for each violation, and knowingly hiring an undocumented worker can result in fines up to $3,200 per violation.  There is also the possibility of criminal prosecution. 

Practice pointer.  As I have written about before, it is important for all employers to properly complete and maintain I-9 forms for each and every employee.  I also recommend that I-9 files be maintained in a file separate and apart from personnel files.  This new report is an excellent example of why that should be done:  if ICE comes to your place of business to inspect your compliance with immigration laws, why give them an entire personnel file that may lead to questions or problems outside the immigration area, such as overtime, discrimination, etc?  If all they get are the I-9 forms, and they are properly completed, they should inspect the forms and go away.  In light of ICE's random inspections, now is a good time for employers to do an I-9 audit to make sure that they are not in violation of the law. 

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Last week, the Federal District Court in Maryland ruled that federal contractors must use the E-Verify system to confirm the eligibility of all newly hired as well as current employees working directly on a federal contract.  Unless there is a stay pending the appeal of this order, starting September 8, most federal contracts must include a provision mandating the use of the E-Verify system.  The United States Citizenship and Immigration Services has a website with frequently asked questions dealing with E-Verify.  A copy of the court's decision can be found here.

E-Verify is also having an impact on the state of Alabama.  Effective January 1, 2010, the city of Huntsville will require any city contractor to use the E-Verify system to screen employees.  According to the Huntsville Times, Councilman Bill Kling  "called it a "very modest proposal" to try to deter illegal immigration in a way that won't get the city sued."   Huntsville's new E-Verify requirement applies to any vendor with a city contract that totals $15,000 or more. 

Last week, at our regularly scheduled employment law seminar, Kelli Robinson spoke on how to conduct an I-9 audit.  She pointed out that U.S. Immigration and Customs Enforcement (ICE) launched an audit initiative in July by issuing Notice of Inspection to 652 businesses.  This is more notices than ICE issued in all of 2008.  With ICE data mining the E-Verify database to determine if employers are using the system to verify all workers and terminate those after receipt of final non-confirmation of work authorization, there may be more audits coming in the near future.  ICE is also using the information to detect identity theft, where the same social security number or permanent resident card is being used at multiple locations. 

Practice Pointer.  Now that Huntsville has adopted the use of the E-Verify system, I anticipate that other cities and counties, and maybe even the state, will require contractors to use the E-Verify system to check the legality of their workforce.  With the increasing use of the E-Verify system, more audits are likely by ICE for government contractors and others who are required to use the system.  Employers should audit their I-9 files to make sure that they are in compliance with immigration laws.

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