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Employer-sanctions legislation focus of debate

February 08, 2008

Parties in a federal-court lawsuit over Arizona’s new Legal Arizona Workers Act disagreed about its constitutionality, enforcement and economic impact on businesses and consumers during a panel discussion Jan. 29 in ASU’s Sandra Day O’Connor College of Law’s Great Hall.

“People are very frustrated in Arizona and this country that Congress has not acted,” says Julie Pace, a Phoenix attorney who represents business groups and others in the lawsuit filed in July, shortly after the Arizona Legislature approved a law punishing employers who knowingly hire undocumented workers. “Everyone wants border security, everyone wants people to have legal status when they work here. We all stand at the same ground level with these beliefs. The problem is the implementation.”

Pace, an attorney with Ballard Spahr Andrews & Ingersoll and a 1992 graduate of the College of Law, joined Paul Eckstein, a lawyer at Perkins Coie Brown & Bain, in raising objections to the act. State Solicitor General Mary O’Grady (class of 1987) and Tim La Sota (class of 2000), a deputy Maricopa County attorney, defended the law at the debate before an audience of about 175.

The law, which allows the public to make anonymous complaints about businesses employing illegal immigrants, was enacted Jan. 1. It would penalize employers by suspending their business licenses for 10 days on the first offense and suspending them permanently on the second offense – sanctions that opponents say are the most stringent in the nation and are much harsher than allowed under federal law.

Arizona’s 15 county attorneys agreed not to take complaints to court until March 1, to give U.S. district court judge Neil Wake time to rule on the challenge by business and immigrant-rights groups. Wake’s decision is expected early this month.

Pace says E-Verify, an Internet-based system of the Department of Homeland Security that Arizona employers must use to check the citizenship status of new hires, is a pilot program fraught with problems.

“It’s not ready for prime time,” Eckstein says.

He called the act “the trifecta of bad legislation” because it’s a bad policy that is confusing, self-contradictory and unconstitutional.

“This isn’t the kind of legislation that ought to be done in the state lab, because what we’re dealing with is a national problem,” he says.

Eckstein also says fear of the act has caused workers to move to adjacent states – and, along with them, their tax money. Pace says the law already has resulted in businesses losing employees and hiring experts to help them comply with the law. It also has forced businesses to raise prices for goods and services, and also has halted various mergers and acquisitions.

Responding to concerns that Arizona is overstepping its authority, O’Grady says Congress has given states room to craft their own policies in this area. She says the act gives employers adequate due process by providing them with notices of complaints and opportunities to rebut at hearings in state court.

O’Grady also notes that the federal government has sued the state of Illinois for prohibiting the use of E-Verify, but has not sued Arizona for requiring its use.

La Sota says the law, which may be amended by state lawmakers this year to correct problems, was approved by a 67-15 bipartisan vote in the Legislature, and signed by Gov. Janet Napolitano. It had a large margin of public support, according to an Eight/KAET-TV poll.

Maricopa County will offer workshops and other tools to business owners to help them comply with the law, La Sota says. Responding to a question from the audience, he says anonymous, raced-based complaints filed by the public will not be prosecuted in his office.

“We will enforce it fairly, and we will enforce it robustly,” La Sota says. “But this is will not be ‘gotcha’ by compliance.”