Opponents of the state’s employer sanctions program say a pair of clauses intended to prevent Arizona companies from having their business licenses revoked if they follow the law may not live up to their billing.
At issue is the meaning of two paragraphs in the legislation. One grants businesses a “rebuttable presumption” against charges they hired illegal immigrants if the company used the Basic Pilot Program to verify the employee’s immigration status. The other allows businesses to present an “affirmative defense” if the current federal employment guidelines were met and the company filled out the I-9 employment verification paperwork.
While supporters of the sanctions program say that provides cover for honest businesses, others aren’t so sure.
“If you really wanted to give businesses cover, you would have an ‘irrebuttable presumption,’” Jessica Pacheco, a lobbyist for the Arizona Chamber of Commerce and Industry, said. “Anything less is a smokescreen.”
But Rep. Russell Pearce, R-18, says the legislation he crafted will only be a problem for the people who know they are breaking the law.
“The way we wrote the bill, you cannot be trapped,” he said. “We want to go after the people who knowingly and intentionally break the law.”
The biggest problem with the Arizona measure, says attorney Julie Pace, who filed a lawsuit challenging the constitutionality of the sanctions program July 13, is that the legislation wasn’t written to match federal law, and thus has different standards and procedures.
State law lacks
‘safe harbor’ provision
Pacheco says one of the biggest inconsistencies with the federal law is the lack of a “safe harbor” provision in the state measure. The federal “safe harbor” provision prescribes steps businesses can take to insulate themselves from prosecution should they unknowingly hire an illegal immigrant.
The rebuttable presumption in the state law won’t do that, she said.
“Depending on how aggressive a prosecutor wants to be, it actually doesn’t mean much,” she said.
Rebuttable presumption is an assumption made in the law that will stand as fact unless someone comes forward to contest it and prove otherwise. In this situation, it would be assumed that the business did not knowingly hire an illegal immigrant.
However, the Arizona sanctions legislation, which will become law in January, allows county attorneys to challenge the rebuttable presumption if they wish.
That, Pace says, means businesses aren’t completely safe from losing their licenses, even if they use the Basic Pilot Program to verify every new hire. She cited the 2006 raids on Swift & Co.’s meatpacking facilities as a possible scenario under the Arizona program; nearly 1,300 of the company’s employees were arrested in a single day for being illegal immigrants, despite the company’s use of the Basic Pilot Program.
The federal government didn’t prosecute Swift for the hirings, but Pace says a similar situation in Arizona could result in a revocation of the business’s license.
Law doesn’t punish those who don’t use pilot program
For businesses that do not use the Basic Pilot Program — though required by the legislation, there is no penalty for businesses that do not use it — H2779 (Laws 2007, Chapter 279) allows an “affirmative defense” to be offered up if the company is prosecuted for hiring an illegal immigrant, as long as the employer followed current federal law regarding I-9 filings.
One of the Legislature’s resident attorneys, Rep. Kyrsten Sinema, D-15, says that clause is good news for businesses.
“If you can prove you complied with the federal I-9 requirements, you are exempt from conviction,” she said, adding that the defendant would win a “directed verdict,” in which the judge would acquit the business.
Pearce said the aim of the affirmative defense clause was to protect the honest businesses.
“We give them credit for following the law,” he said.
But that doesn’t mean businesses will be lining up to try their luck with an affirmative defense. Or, for that matter, the rebuttable presumption, says Pace.
“I don’t think any company wants to be the first to test some of those pieces,” she said.