U.S. Supreme Court Upholds Arizona’s
Employer Sanctions Law
In June 2011, the U.S. Supreme Court upheld the Legal Arizona Workers Act that the Arizona legislature passed in 2007.
The Act, which went into effect January 1,
2008, requires employers to use E-Verify to ensure that workers are legally
authorized, and it provides for the suspension or revocation of the business
licenses of Arizona employers that knowingly or intentionally employ
After the Act's passage, a coalition of advocacy groups and business interests
challenged its legality, arguing mainly that federal law expressly preempts “any
State or local law imposing civil or criminal sanctions (other than through
licensing and similar laws) upon those who employ ... unauthorized aliens.” 8 U.S.C. § 1324a(h)(2).
The legal challenge made its way to the U.S. Supreme Court, which, in denying
the challenge, found that the Legal Arizona Workers Act was precisely the kind
of “licensing and similar laws” for which the federal law expressly makes an
exemption. The Supreme Court rejected the various arguments put forth that the
phrase “other than through licensing and similar laws” in the federal law should
be construed narrowly so as to block state laws such as Arizona’s.
The Supreme Court went on to address the argument that Arizona’s law must
nevertheless be stricken because it conflicts with federal immigration law. In
its ruling, the Supreme Court wrote:
"Arizona’s procedures simply implement the sanctions that congress expressly
allowed Arizona to pursue through licensing laws. Given that Congress
specifically preserved such authority for the States, it stands to reason that
Congress did not intend to prevent the States from using appropriate tools to
exercise that authority."
The Court also addressed the argument that requiring employers to use
E-Verify impedes the purpose of federal immigration law because federal law
allows other employment verification procedures. In rejecting that argument, the
Court noted the federal government’s consistent reliance on and support of the
E-Verify program and the fact that federal immigration law restricts only the
Secretary of Homeland Security (not the states) in requiring the use of
In short, the Court found that the Legal Arizona Workers Act does not conflict
with federal immigration law; rather, the Legal Arizona Workers Act’s sanctions
and E-Verify requirement complement federal immigration law.
Requirements and Penalties
Now that the Legal Arizona Workers Act has been upheld, what should Arizona
employers know and do?
Under the Act, an employer must verify the employment eligibility of new
employees through the E-Verify program and keep a record of the verification
throughout the employment or for three years, whichever is longer.
register online for the E-Verify program.
Proof of verifying the employment authorization of an employee through the
E-Verify program creates a rebuttable presumption that an employer did not
knowingly employ an unauthorized alien.
An employer who knowingly employs an unauthorized alien will be required to
terminate all unauthorized workers and will be placed on a three-year
probationary period. The employer’s business license may also be suspended for
up to 10 days. ("Knowingly" means actual knowledge, or knowledge through notice
of facts and circumstances, that would lead a reasonable person, through
reasonable care, to know of a certain condition.)
An employer who intentionally employs an unauthorized alien will be required
to terminate all unauthorized workers, will receive a mandatory suspension of
its business licenses for 10 days and be placed on a five-year probationary
period. (An employer would be "intentional" in the hiring of an unauthorized
alien if it was the employer's objective to engage in the prohibited conduct.)
An employer who knowingly or intentionally employs an unauthorized alien while
on probation under the scheme will receive a mandatory revocation of its