Employer Provisions

This new Act includes two major provisions that affect employers. The first makes it unlawful (by State law) to knowingly employ, hire, or continue to employ an unauthorized alien. The second mandates employers to use the E-Verify system to verify the employment eligibility of every new employee starting April 1, 2012 (or January 1, 2012 if contracting with any State-funded entity).

While we suspect the E-Verify system may be a little burdensome, its correct use will provide “protection” should the employee later be determined to be an unauthorized alien.   Additionally, the Act provides employers immunity from claims by terminated employees, provided the termination was within the law and not made in regard to race, ethnicity, or national origin but instead was consistent with the requirements of the law and Act.

Penalties for Non-Compliance

Penalties for first violation include:

  • Court ordered termination of every unauthorized alien;
  • Three year probation requiring quarterly reports to the local DA regarding each new employee;
  • File an affidavit with the DA regarding compliance; and
  • Business license suspended for up to ten (10) days for the violating location.

Penalty for second violation:

  • Permanent revocation of business license for violating location.

Penalty for third violation:

  • Permanent revocation of business license for all locations through-out the state.

While it remains improper to deduct any wages or compensation of any kind from state income or business taxes for the performance of any services paid to an unauthorized alien, the new Act imposes a penalty equal to ten (10) times the business expense deduction claimed in violation of the Act.

The Act also includes new causes of action for discrimination for failure to hire a “legal” job applicant or for discharging a “legal” employee while hiring or retaining any unauthorized alien that the employer should have reasonably known was unauthorized. Damages may include compensatory relief, court costs, and reasonable attorney fees.

The Act allows any Alabamian to petition the Attorney General to bring enforcement action against a noncompliant business. Additionally, the Act makes it illegal for an unauthorized alien to apply for work, solicit work in a public or private business, or perform work as an employee or independent contractor. Violations are a Class C misdemeanor and are subject to a fine of up to $500.

Contractual Agreements Un-Enforceable

The courts will not enforce any contracts between a party and an unauthorized alien if the party had constructive knowledge that the unauthorized alien was “illegal” unless the contract did not require the unauthorized alien to remain in the U.S. for more than twenty-four (24) hours upon execution of the contract. Exceptions to this rule include: one (1) nights lodging, food to be consumed by the unauthorized alien, medical services, or travel to the unauthorized alien’s home country.

Contractor/Subcontractor Liabilities

A prime contractor will not be liable if it obtains an affidavit from its subcontractors that they are in compliance with the law. This should include a statement that they do not employ any unauthorized aliens and that they use the E-Verify system.

Definitions and Other Components Included in the Act

  • The Act includes self-employed individuals but excludes casual domestic labor performed within a household.
  • An unauthorized alien is anyone who is not a citizen or national of the United States and who is not authorized to work in the U.S. pursuant to federal law.
  • What is considered “reasonable knowledge” under Federal standards?
    • Unauthorized alien admits that he/she is unauthorized/illegal;
    • Employer fails to require the timely or correct completion of the I-9 Form (or use the E-Verify system starting April 1, 2012); or
    • Failure to act or follow-up on a “No-Match Letter” or “Tentative Nonconfirmation” from the E-Verify system.

What Should You Do?

  • Enroll in the E-Verify system at https://e-verify.uscis.gov/enroll/StartPage.aspx?JS=YES
  • Audit current I-9 practices and documentation to ensure compliance;
  • Designate and train responsible parties on the Alabama Immigration Act including I-9 and E-Verify;
  • Include an E-Verify policy in your employee handbook.
We know this new immigration law is very complex. Contact the Harris Law Firm. We offer services to help you run your business in the face of complexity.