Thread: Arizona law maybe over turned

http://www.azstarnet.com/sn/hourlyupdate/220650.php

Judge raises last-minute questions over sanctions law
Capitol Media Services
Tucson, Arizona | Published: 01.15.2008
advertisementBy Howard Fischer
PHOENIX — A federal judge raised last-minute questions Tuesday about Arizona's new employer sanctions law, questions that could provide the grounds for him to declare it unconstitutional.
Judge Neil Wake on Tuesday told attorneys to explain to him at Wednesday's hearing what appeal rights — if any — companies have to contest a report from a federal government database that a worker is not in the country legally.
The question is crucial to the future of the state statute. That's because the U.S. Constitution requires all laws to protect the "due process'' rights of those accused of breaking them to prove they are innocent.
Even if Wake upholds the validity of the law, he might limit its scope. He also is asking the lawyers for both sides of the argument whether a company can be penalized for having an undocumented worker already on its payroll before the state statute making that illegal took effect Jan. 1.
Lou Moffa Jr., one of the lead attorneys for businesses challenging the statute, said Wake's questions suggest the judge now realizes there are flaws in the law.
That statute permits a state judge to suspend or revoke all licenses of any firm found guilty of knowingly or intentionally hiring those not authorized to work in this country.
Another provision of the law requires companies to verify a new worker's legal status through the federal government's E-Verify program. And it stipulates that any firm which uses that program has a "rebuttable presumption'' it did not break the law.
Moffa said one problem is that state judges, reviewing complaints against employers, cannot legally determine themselves if a worker is in this country legally.
Instead, judges can rely only on information from a separate federal database of authorized workers. If that database says the worker is not legal, a judge has no choice but to find the company guilty.
Moffa said Wake's question goes directly to the contention of employers that there is no way for a company to appeal the findings of either database, even if they have actual evidence the worker is, in fact, a U.S. citizen or in this country legally.
Read more of this story online tomorrow and in the Arizona Daily Star



What do we have to do.................

They aren't going to "appeal" a finding.....they KNOW the worker is illegal and the worker certainly KNOWS and would admit it when caught. This is just a ridiculous argument straining at gnats to strike down the law and keep their illegal labor. The people of Az should boycott and raise their voices against these employers who are pushing this idiocity.

Moffa said one problem is that state judges, reviewing complaints against employers, cannot legally determine themselves if a worker is in this country legally.

WHY NOT?? Seems like a simple enough verification process, to me!!! Can a judge not determine if someone has a driver's license if they are accused of not having one???

Looks like the Open Borders Activists have a potentially successful fishing expedition and have found a sympathetic judge.

gofer said

WHY NOT?? Seems like a simple enough verification process, to me!!! Can a judge not determine if someone has a driver's license if they are accused of not having one???

Gopher that's easy!!! Again a lack of common sense makes way for idiocy!Unfortunately the path with the most common sense it often the path less traveled.

I believe there is an appeal process. The database is not errot free. Any employee using a name and social security number NOT verified has the opportunity to revise the information which was submitted or advise the SSA of a name change or data entry error.

A judge "looks for" evidence.

Any legal employee should be able to furnish a birth record.

E-Verify System:

How does the program work? After completing the Form I-9, the employer must log on to a secure DHS website and enter the employee's information and the documents presented. The E-Verify procedures must be initiated within three business days of the date of hire, and only after the Form I-9 has been completed. The information is then transmitted immediately to the SSA. If the Social Security number (SSN) and name match SSA records, the employer receives a message within two to three seconds that the employee is authorized to work and the process is finished.

If the SSN and name match, but the SSA cannot verify that the employee is work-authorized (i.e., the SSN may have been issued "not for employment purposes"), the employer gets a message that DHS is attempting to verify work authorization. DHS responds within 1-3 days, after checking its records by hand. If DHS finds a match, it tells the employer, and the process is finished.

If the procedures do not provide verification of employment eligibility, the inquiry will result in further instructions to the employer. In some cases, the employer will be directed to contact the DHS to follow alternate verification procedures. In other cases, the employer will receive notification of a "tentative nonconfirmation" of employment eligibility. In that case, the employer asks the employee whether he or she wishes to contest the tentative nonconfirmation. If the employee chooses to contest, he or she must contact the SSA or DHS within eight government working days of notification to resolve any discrepancy in SSA or DHS records. The employer should make a second inquiry using the E-Verify procedures within 10 government working days after the date of the referral in order to obtain confirmation, or final non-confirmation.

Tentative nonconfirmation does not mean that a person is not authorized to work, and employers cannot treat it as proof that the individual is not employment-authorized. Employers cannot terminate an employee based upon nonconfirmation, until the individual has had time to follow the procedures for correcting any misinformation. The employee must follow the procedures for contesting the nonconfirmation, if he or she desires to continue the employment.

If the employee does not contest a tentative nonconfirmation or if the tentative nonconfirmation is not successfully contested, it becomes a final nonconfirmation. The employer may not take adverse action against the employee until there is a final nonconfirmation. Once a final nonconfirmation is issued, the employer may terminate the employee without civil or criminal liability. If the employer does not terminate the employee after a final nonconfirmation, the employer must notify the DHS. If the employer fails to do so, it will be subject to a civil penalty of between $500 and $1,000. Keeping a person on payroll who has had a final nonconfirmation creates a rebuttable presumption that the employer is employing an unauthorized individual.

Since each case has its own particular set of facts and circumstances, we strongly recommend that employers seek advice from immigration counsel before terminating any employee.


http://www.bipc.com/news.php?NewsID=2516