New Alabama immigration law allows hiring 'casual domestic labor' without check
Published: Friday, August 05, 2011, 7:30 AM
By David White -- The Birmingham News

MONTGOMERY, Alabama -- Homeowners who hire people to clean their houses or do other "casual domestic labor" won't have to use a federal program to check whether those people may legally work here, under the state immigration law passed in June.

The law says that, starting April 1, every business or employer in Alabama must use the E-Verify system, either directly or through the state Department of Homeland Security, to check a new hire's employment eligibility. But the law also defines an employer to exclude "the occupant of a household contracting with another person to perform casual domestic labor within the household."

The law's sponsor, state Rep. Micky Hammon, R-Decatur, said he and other supporters of the law wrote in that exception to keep homeowners from having to use E-Verify each time they try to hire someone for "incidental labor." That someone could be a neighborhood kid hired to baby-sit, said an attorney familiar with the law.

"We decided we needed to exempt homeowners," Hammon said. "When you start having E-Verify, we don't want homeowners all over the state to have to do that when someone cuts their grass or cleans their home. This is just incidental labor that happens time to time."

He said he and other supporters of the law didn't want to hassle homeowners, and they believed other parts of the law would lead unauthorized immigrants to leave the state.

Those other parts include a provision that a person without valid federal alien registration or other proof of legal presence in the United States would, just for being in Alabama, be guilty of a crime punishable by a $100 fine and 30 days in jail. There is no exception in that section for people doing "casual domestic labor."

Another part of Alabama's immigration law, Section 11, says an unauthorized alien would be guilty of a crime, punishable by a $500 fine, if he or she were to apply for or perform work as an employee.

An employee is defined as someone directed, allowed or permitted to perform labor by an employer, and the term employer is defined to exclude a household occupant who hires someone to perform casual domestic labor within the household.

Ted Hosp, a lawyer in Birmingham with Maynard Cooper & Gale who analyzed the law when it was a bill in the Legislature, said he thinks that section of the law, along with the definition of employer and employee, could have created a loophole that excludes domestic laborers from the ban on illegal immigrants working or applying for work in Alabama.

"I think it could be interpreted as not applying to individuals either working in the home or seeking work in the home" of someone hiring them, Hosp said. "I would also say that in my opinion that was not the intent of the Legislature."

But Shay Farley, legal director for the Alabama Appleseed Center for Law and Justice, based in Montgomery, said that "based on the intent of the Legislature and the plain language" of the section, she thinks it would prohibit an unauthorized immigrant from applying for, soliciting or performing domestic labor.

"I don't think there's enough wiggle room to go work as a gardener," Farley said. "I still think the intention is that, if you know you don't have papers, you better stop working. I think that's the intention and that's how Section 11 reads." The Alabama Appleseed Center is one of several groups, including the Justice Department, that have filed suit to try to strike down the immigration law.

Hammon said he did not intend there to be any loophole that would allow an illegal immigrant to apply for or perform "casual domestic labor."

"If it can be interpreted that way, that's something we need to correct. We were trying to prevent homeowners from having to be responsible for identifying whether someone was here illegally," he said. "We didn't intend to exempt the illegal alien when he worked at someone's home."

Hammon said that, in his view, the law clearly would not affect household residents who didn't know the immigration status of someone hired to perform a one-time domestic chore.

But he said a homeowner who knowingly hired an illegal immigrant long-term for domestic labor, especially if the immigrant lived in the household, could be violating another part of the law.

That section says that, starting Sept. 1, it would be a crime, punishable by as much as a year in jail, for a person to conceal, harbor or shield an illegal immigrant from detection if that person knew or recklessly disregarded the fact that the immigrant was in the United States illegally.

"If you have someone you absolutely know is illegal and you're letting them live in your home, you could be guilty of harboring," Hammon said.

He added that someone who hired an illegal immigrant who didn't live in a household but who regularly did domestic work there also might be found guilty of concealing or harboring. "That's something the attorney general and court system would have to decide, where to draw the line," Hammon said. "I would not take that risk."

The immigration law also excludes household residents who hire people to perform casual domestic labor from a ban on any employer knowingly hiring or continuing to employ an unauthorized alien. Punishment for violating that section, besides lots of paperwork, would be the suspension or revocation of the employer's business license, and few households may have business licenses.

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