ACTION ALERT
Arizona Fair and Legal
Employment Act
Friday, February 08, 2008
By Chris Simcox
President
MinutemanHQ
Friends, I feel we can now proceed with a national state by state effort to encourage all state legislators to take Arizona's model law and introduce it in your respective states.
This is a Minuteman Civil Defense Corps Bill! One of our first victory's in passing successful legislation without a ballot initiative.
What was HB 2779 - the "Arizona Fair and Legal Employment Act" is now law and has withstood all challenges - thus far. The bill was authored by our card carrying MCDC volunteer, state representative Russell Pearce, with legal assistance from Kris Kobach.
I have attached the final version of the ARS statutes and the findings of the most recent challenge to the constitutionality of the bill which was upheld by the courts.
Your job? Get this bill in the hands of every state representative you can and encourage them to introduce such bills in your respective states - let's keep working to ensure a fair playing field for businesses and the U.S. citizen workers.
Thanks for your help,
For the love of our country,
Chris
Simcox, President
Minuteman Civil Defense Corps
NOTE: In accordance with Title 17 U.S.C. section 107, any copyrighted material herein is distributed without profit or
payment to those who have expressed prior interest in receiving this
information for non-profit research and educational purposes only. For further information please refer to:
http://www.law.cornell.edu/uscode/17/107.shtml
Arizona Revised Statute – The Arizona Fair and Legal Employment Act
23-211.
Definitions
In this article, unless the context otherwise requires:
1. "Agency" means any agency, department, board or commission of this state
or a county, city or town that issues a license for purposes of operating a
business in this state.
2. "Basic pilot program" means the basic employment verification pilot
program as jointly administered by the United States department of homeland
security and the social security administration or its successor program.
3. "Employee" means any person who performs employment services for an
employer pursuant to an employment relationship between the employee and
employer.
4. "Employer" means any individual or type of organization that transacts
business in this state, that has a license issued by an agency in this state and
that employs one or more individuals who perform employment services in this
state. Employer includes this state, any political subdivision of this state and
self-employed persons.
5. "Intentionally" has the same meaning prescribed in section 13-105.
6. "Knowingly employ an unauthorized alien" means the actions described in 8
United States Code section 1324a. This term shall be interpreted consistently
with 8 United States Code section 1324a and any applicable federal rules and
regulations.
7. "License":
(a) Means any agency permit, certificate, approval, registration, charter or
similar form of authorization that is required by law and that is issued by any
agency for the purposes of operating a business in this state.
(b) Includes:
(i) Articles of incorporation under title 10.
(ii) A certificate of partnership, a partnership registration or articles of
organization under title 29.
(iii) A grant of authority issued under title 10, chapter 15.
(iv) Any transaction privilege tax license.
(c) Does not include:
(i) Any license issued pursuant to title 45 or 49 or rules adopted pursuant
to those titles.
(ii) Any professional license.
8. "Unauthorized alien" means an alien who does not have the legal right or
authorization under federal law to work in the United States as described in 8
United States Code section 1324a(h)(3).
23-212.
Employment of unauthorized aliens;
prohibition; false and frivolous complaints; violation; classification; license
suspension and revocation; affirmative defense
A. An employer shall not intentionally employ an unauthorized alien or
knowingly employ an unauthorized alien.
B. On receipt of a complaint that an employer allegedly intentionally employs
an unauthorized alien or knowingly employs an unauthorized alien, the attorney
general or county attorney shall investigate whether the employer has violated
subsection A. When investigating a complaint, the attorney general or county
attorney shall verify the work authorization of the alleged unauthorized alien
with the federal government pursuant to 8 United States Code section 1373(c). A
state, county or local official shall not attempt to independently make a final
determination on whether an alien is authorized to work in the United States. An
alien's immigration status or work authorization status shall be verified with
the federal government pursuant to 8 United States Code section 1373(c). A
person who knowingly files a false and frivolous complaint under this subsection
is guilty of a class 3 misdemeanor.
C. If, after an investigation, the attorney general or county attorney
determines that the complaint is not frivolous:
1. The attorney general or county attorney shall notify the United States
immigration and customs enforcement of the unauthorized alien.
2. The attorney general or county attorney shall notify the local law
enforcement agency of the unauthorized alien.
3. The attorney general shall notify the appropriate county attorney to bring
an action pursuant to subsection D if the complaint was originally filed with
the attorney general.
D. An action for a violation of subsection A shall be brought against the
employer by the county attorney in the county where the unauthorized alien
employee is employed. The county attorney shall not bring an action against any
employer for any violation of subsection A that occurs before January 1, 2008. A
second violation of this section shall be based only on an unauthorized alien
who is employed by the employer after an action has been brought for a violation
of subsection A.
E. For any action in superior court under this section, the court shall
expedite the action, including assigning the hearing at the earliest practicable
date.
F. On a finding of a violation of subsection A:
1. For a first violation during a three year period that is a knowing
violation of subsection A, the court:
(a) Shall order the employer to terminate the employment of all unauthorized
aliens.
(b) Shall order the employer to be subject to a three year probationary
period. During the probationary period the employer shall file quarterly reports
with the county attorney of each new employee who is hired by the employer at
the specific location where the unauthorized alien performed work.
(c) Shall order the employer to file a signed sworn affidavit with the county
attorney within three business days after the order is issued. The affidavit
shall state that the employer has terminated the employment of all unauthorized
aliens and that the employer will not intentionally or knowingly employ an
unauthorized alien. The court shall order the appropriate agencies to suspend
all licenses subject to this subdivision that are held by the employer if the
employer fails to file a signed sworn affidavit with the county attorney within
three business days after the order is issued. All licenses that are suspended
under this subdivision shall remain suspended until the employer files a signed
sworn affidavit with the county attorney. Notwithstanding any other law, on
filing of the affidavit the suspended licenses shall be reinstated immediately
by the appropriate agencies. For the purposes of this subdivision, the licenses
that are subject to suspension under this subdivision are all licenses that are
held by the employer and that are necessary to operate the employer's business
at the employer's business location where the unauthorized alien performed work.
If a license is not necessary to operate the employer's business at the specific
location where the unauthorized alien performed work, but a license is necessary
to operate the employer's business in general, the licenses that are subject to
suspension under this subdivision are all licenses that are held by the employer
at the employer's primary place of business. On receipt of the court's order and
notwithstanding any other law, the appropriate agencies shall suspend the
licenses according to the court's order. The court shall send a copy of the
court's order to the attorney general and the attorney general shall maintain
the copy pursuant to subsection G.
(d) May order the appropriate agencies to suspend all licenses described in
subdivision (c) of this paragraph that are held by the employer for not to
exceed ten business days. The court shall base its decision to suspend under
this subdivision on any evidence or information submitted to it during the
action for a violation of this subsection and shall consider the following
factors, if relevant:
(i) The number of unauthorized aliens employed by the employer.
(ii) Any prior misconduct by the employer.
(iii) The degree of harm resulting from the violation.
(iv) Whether the employer made good faith efforts to comply with any
applicable requirements.
(v) The duration of the violation.
(vi) The role of the directors, officers or principals of the employer in the
violation.
(vii) Any other factors the court deems appropriate.
2. For a first violation during a five year period that is an intentional
violation of subsection A, the court shall:
(a) Order the employer to terminate the employment of all unauthorized
aliens.
(b) Order the employer to be subject to a five year probationary period.
During the probationary period the employer shall file quarterly reports with
the county attorney of each new employee who is hired by the employer at the
specific location where the unauthorized alien performed work.
(c) Order the appropriate agencies to suspend all licenses, described in
subdivision (d) of this paragraph that are held by the employer for a minimum of
ten days. The court shall base its decision on the length of the suspension
under this subdivision on any evidence or information submitted to it during the
action for a violation of this subsection and shall consider the following
factors, if relevant:
(i) The number of unauthorized aliens employed by the employer.
(ii) Any prior misconduct by the employer.
(iii) The degree of harm resulting from the violation.
(iv) Whether the employer made good faith efforts to comply with any
applicable requirements.
(v) The duration of the violation.
(vi) The role of the directors, officers or principals of the employer in the
violation.
(vii) Any other factors the court deems appropriate.
(d) Order the employer to file a signed sworn affidavit with the county
attorney. The affidavit shall state that the employer has terminated the
employment of all unauthorized aliens and that the employer will not
intentionally or knowingly employ an unauthorized alien. All licenses that are
suspended under this subdivision shall remain suspended until the employer files
a signed sworn affidavit with the county attorney. For the purposes of this
subdivision, the licenses that are subject to suspension under this subdivision
are all licenses that are held by the employer and that are necessary to operate
the employer's business at the employer's business location where the
unauthorized alien performed work. If a license is not necessary to operate the
employer's business at the specific location where the unauthorized alien
performed work, but a license is necessary to operate the employer's business in
general, the licenses that are subject to suspension under this subdivision are
all licenses that are held by the employer at the employer's primary place of
business. On receipt of the court's order and notwithstanding any other law, the
appropriate agencies shall suspend the licenses according to the court's order.
The court shall send a copy of the court's order to the attorney general and the
attorney general shall maintain the copy pursuant to subsection G.
3. For a second violation of subsection A during the period of probation, the
court shall order the appropriate agencies to permanently revoke all licenses
that are held by the employer and that are necessary to operate the employer's
business at the employer's business location where the unauthorized alien
performed work. If a license is not necessary to operate the employer's business
at the specific location where the unauthorized alien performed work, but a
license is necessary to operate the employer's business in general, the court
shall order the appropriate agencies to permanently revoke all licenses that are
held by the employer at the employer's primary place of business. On receipt of
the order and notwithstanding any other law, the appropriate agencies shall
immediately revoke the licenses.
G. The attorney general shall maintain copies of court orders that are
received pursuant to subsection F and shall maintain a database of the employers
who have a first violation of subsection A and make the court orders available
on the attorney general's website.
H. On determining whether an employee is an unauthorized alien, the court
shall consider only the federal government's determination pursuant to 8 United
States Code section 1373(c). The federal government's determination creates a
rebuttable presumption of the employee's lawful status. The court may take
judicial notice of the federal government's determination and may request the
federal government to provide automated or testimonial verification pursuant to
8 United States Code section 1373(c).
I. For the purposes of this section, proof of verifying the employment
authorization of an employee through the basic pilot program creates a
rebuttable presumption that an employer did not intentionally employ an
unauthorized alien or knowingly employ an unauthorized alien.
J. For the purposes of this section, an employer who establishes that it has
complied in good faith with the requirements of 8 United States Code section
1324b establishes an affirmative defense that the employer did not intentionally
or knowingly employ an unauthorized alien.
23-213.
Employer actions; federal or state law
compliance
This article shall not be construed to require an employer to take any action
that the employer believes in good faith would violate federal or state law.
23-214.
Verification of employment eligibility;
basic pilot program
After December 31, 2007, every employer, after hiring an employee, shall
verify the employment eligibility of the employee through the basic pilot
program.
Back to ARS statutes
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