eTrends - Arizona's Mandatory E-Verify Law Upheld by Supreme Court

The United States Supreme Court has upheld the controversial Legal Arizona Workers Act (the "Act"). The Act requires all employers in Arizona to use the federal E-Verify system, an internet-based employment verification system administered by the U.S. Department of Homeland Security, to determine workers' eligibility to work in the United States. The Act also provides that if an employer knowingly hires an unauthorized alien, the employer's business license can be suspended or revoked.

In the case of Chamber of Commerce of the United States v. Whiting, (May 26, 2011) the Chamber of Commerce of the United States and various civil rights groups challenged the Act contending that it was preempted by the federal Immigration Reform and Control Act. The Supreme Court ruled that the Act was not preempted by federal law. With respect to the Act's sanctions relating to licensing, the Court noted that such sanctions fall well "within the confines of the authority Congress chose to leave to the States." As to the Act's requirement that every Arizona employer must use E-Verify to verify the employment eligibility of the employee, the Court noted that such requirement is "entirely consistent with the federal law."

The Court's ruling is likely to encourage other states to enact additional employment verification requirements. For example, North Carolina has proposed legislation requiring the use of E-Verify by businesses with 25 or more employees. Employers who have employees in multiple states should continue to confirm that they are in compliance with both federal and all applicable state employment verification requirements. In addition, employers should review their Form I-9 compliance program to ensure that Form I-9's are being obtained and completed properly.

Please contact Travis Hockaday with any questions.

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Smith Anderson publishes eTrends periodically as a service to clients and friends. The purpose of this eTrends is to provide general information about a significant legal development in the field of employment law. Readers should be aware that the facts may vary from one situation to another, so the conclusions stated herein may not be applicable to the reader’s particular circumstances.

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