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

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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HB 56/Alabama's Immigration Law.  I don't want to sound like a broken record, but....Sunday April 1 is the day HB 56 requires all employers in Alabama to use E-Verify for new employees.  This is in addition to the use of I-9's.  Employers that knowingly hire or continue to employ unauthorized aliens are subject to harsh penalties, including the suspension or revocation of business licenses.

ADEA.  The EEOC has issued it's Final Rule on Reasonable Factors Other Than Age under the ADEA.  According to the EEOC press release, "The final rule clarifies that the ADEA prohibits policies and practices that have the effect of harming older individuals more than younger individuals, unless the employer can show that the policy or practice is based on a reasonable factor other than age."  The Final Rule will be important for companies defending ADEA claims when the defense is that the decision made in regard to an individual over 40 was not predicated on age, but rather a reasonable business decision.

Social Media.  I hate auto-correct on my Blackberry, as do many users of Iphones, Droids, etc.  Recently, WSBTV in Atlanta reported that the West Hall High School and West Hall Middle School were put on lock down after  a student sent a text message that read "gunman to be at west hall."  The message was supposed to be "gunna be at west hall", but the auto-correct feature changed the message.  The student sending the message was not charged after police discovered what happened. 

FMLA.  The United States Supreme Court, in a 5-4 decision, found that states are not subject to the self-care provisions of the FMLA.  In 2003, the Court found that states could be sued for damages for violations of the family care provisions of the FMLA, since the family leave policies in place with states either discriminated on the basis of sex or were administered in a way that discriminated on the basis of sex.  Under the self-care provisions of the FMLA, there were no policies that discriminated on the basis of sex, or were administered in a way that discriminated on the basis of sex.  Thus states are immune from damages under the Fourteenth Amendment. 

GINA.  Effective April 3, 2012, the EEOC has new record keeping requirements under the Genetic Information Nondiscrimination Act of 2008.  GINA applies to employers with 15 or more employees, employment agencies, labor unions and federal sector employers.  The new rule requires all employment and personnel records to be kept in the same manner as required under Title VII and ADA.  Records containing medical or genetic information should be segregated from other personnel records and access limited to those with a business need to see them. 

Spelling out numbers.  Oftentimes, lawyers are criticized for all the legalize that appears in documents.  One of the areas of 'legalize' is the fact that lawyers almost always spell out numbers.  Every now and then, a lawsuit demonstrates why this is done.  Michael Fox  blogged last week about a lawsuit that went to trial in London.  The suit is focused on whether a currency trader was to be paid 2.4 million rand or 24 million rand, a difference of $980,000.  JPMorgan is arguing that it was a typographical error in the numbers.  The numbers were not spelled out. 

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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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