Federal cases may hurt Ariz. hiring law
Opponents apt to cite rulings on crackdowns
Ryan Randazzo
The Arizona Republic
Oct. 13, 2007 12:00 AM

Tougher federal rules for keeping illegal immigrants out of work were put on hold this week in a court decision that could help businesses fighting the new state employer-sanctions law.

But trying to follow state and federal cases through the courts and see their connections can be mind-boggling for business owners and executives.

A U.S. District Court in San Francisco temporarily blocked stricter rules for businesses that get "no match" letters for employees from the Social Security Administration that show discrepancies in their records that could indicate workers are not legal residents.

Even the government recognizes that Social Security records contain "numerous errors" that could cause businesses to fire legally employed people, Judge Charles Breyer wrote in his opinion.

Arizona's new law, set to take effect Jan. 1, requires businesses to verify workers' eligibility using Social Security data as well as Department of Homeland Security information, bundled in an online program called E-Verify.

"The court decision helps reinforce that the Social Security database is not accurate and that people should not lose their jobs based on mix-ups in the database," said David Selden, an attorney with Ballard Spahr in Phoenix who is fighting the new state law.

Social Security officials could not discuss the reliability of their data because the judge's order is temporary and the lawsuit is ongoing, spokesman Lowell Kepke said from the San Francisco-area office.

Homeland Security Secretary Michael Chertoff said in a statement that he was disappointed by the decision.

"Today's ruling is yet another reminder of why we need Congress to enact comprehensive immigration reform," he said in a prepared statement Thursday.

Selden advised employers who adopted new policies in anticipation of the federal crackdown to reverse them to avoid breaking discrimination laws.

"If somebody were to now follow the Social Security mismatch regulations that have been stayed (by the federal court), that could cause you to have liability for discriminatory practices," Selden said.

This week's court action questioned whether Homeland Security officials can guarantee employers won't face discrimination charges when they follow the proposed rules when trying to verify workers after getting a no-match letter.

"There is therefore a serious question whether DHS has impermissibly exceeded its authority," Breyer wrote in his opinion.


Precedents set
Arizona lawyers say that a July federal ruling on a Hazleton, Pa., law helps their case against the state law more than this week's federal decision.

A judge said that the city's law denying business permits to companies that employ illegal immigrants overstepped federal law. An appeal has been filed.

The Hazleton law had provisions involving landlords that rent to illegal immigrants.

The law is otherwise similar to Arizona's, which threatens business licenses for companies caught twice with illegal workers, and opponents used similar arguments to fight it.

Neither the Hazleton ruling nor this week's federal ruling are binding to Arizona, but experts say they don't look good for Arizona's law because its opponents are certain to cite them.

"I would be happy to guide the court to another court that has reasoning that aligns with ours," said Troy Foster, an employment lawyer in Phoenix with Ford & Harrison who is not representing anyone in the state employer-sanctions fight. "I would certainly be happy to see a case come down like that (if fighting the law)."


Be prepared
Foster and other lawyers urge businesses to be flexible and ready to comply with the state and federal laws.

"We want to make sure they are prepared, but, at the same time, that state law could be stayed or modified if the Legislature goes into a special session or it gets clarified or a judge strikes part of it," Foster said.

"We don't know what is going to happen."

Some businesses cheered this week's decision.

"We were all relieved by it," said Don Ellis, co-owner of the Landmark Restaurant in Mesa and chairman of the Arizona Restaurant and Hospitality Association.

"We have a hard enough time now finding help," Ellis said.

"The paperwork already is a just a mess. The names they get backwards, or sometimes you get a guy or a girl that is perfectly legal but there is some sort of hiccup."

He echoed Chertoff's desire for Congress to address immigration. "What we need is somehow for the government to get a program that allows workers to come in here and to block the border," Ellis said. "Everybody is for that."
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