STATE UPDATES

Arizona

Legal Interpretations, Immigration
Though the IRCA specifically preempts state and local laws imposing civil or criminal penalties on those employers that employ undocumented workers, the Ninth Circuit Court in Arizona held that the Legal Arizona Workers Act (LAWA) falls within the IRCA’s saving clause, which exempts licensing and similar laws from express preemption. In addition, the court found that LAWA does not violate employers’ due process rights and that the required use of E-Verify is justified because requirements such as that are neither explicitly or implicitly preempted by the federal policy. (CPLC v Napolitano, 9thCir, Nos 07-17272, 07-17274, 08-15357, 08-15359, 08-15360. Decided September 17, 2008).

Voters reject Arizona's Stop Illegal Hiring Act, Immigration
Proposition 202 (Arizona’s Stop Illegal Hiring Act) was rejected by voters. This Act would have relaxed some provisions in the Legal Arizona Workers Act (LAWA). One such definition is the term knowledge standard in “knowingly employing an unauthorized alien.” This act would have made “actual knowledge” the knowledge standard, which is harder to prove. In addition, Proposition 202 would have provided that state, county and local officials would have to rely solely upon processes and procedures set forth in federal law, which they do not currently do, and would have rejected the recent amendment to LAWA that allows anonymous complaints of unauthorized workers, instead requiring that the complaints be signed. The Act, which would have instituted tougher identity theft penalties, would have also narrowed the scope of business licenses that can be revoked under LAWA. Currently, LAWA suspends and revokes business licenses of employers that intentionally or knowingly employ undocumented workers in the United States. The two final changes would have involved E-Verify. The first would have postponed the use of E-Verify until after December 31, 2008 and would have created a non-rebuttable presumption of innocence if an employer verifies work eligibility through E-Verify. Currently under LAWA, E-Verify must be used and while employers that use E-Verify are entitled to the presumption that they did not knowingly or intentionally employ an undocumented worker, it is rebuttable.

Proposition 202, defeated Nov. 4, can be found at: http://www.stopillegalhiring.com/SIHInitiativeLanguageFinal.pdf.

LAWA, in its entirety, can be found at: http://www.maricopacountyattorney.org/lawa/statutes.htm.


California

Pre-employment Inquiries Law
The state has amended its criminal background check law with respect to In-Home Supportive Services (IHSS) providers (Ch. 2 (S. 692), L. 2007, enacted March 14, 2008, at CA ¶5-9000).

In accordance with a thorough background investigation, the collection of nonmedical or non-psychological information of peace officers may be deferred until after a conditional offer of employment is issued. This may only occur if the employer can demonstrate that the information could not reasonably have been collected prior to the offer. This is consistent with the Americans with Disabilities Act of 1990 and with California law (Ch. 437 (A. 2028), L. 2007, enacted September 27, 2008, at CA ¶5-9000).

Colorado

Pre-employment Inquiries Law Summary
Colorado has enacted a law setting a time limit on the Department of Education’s response to a background query. In addition, if an employee is dismissed or resigns as a result of an allegation of unlawful behavior with a child and the school district has a preponderance of evidence, a district must report the dismissal/resignation to the Department of Education (H. 1344, L. 2008, at CO).

Hawaii

Pre-employment Inquiries Law Summary
The state has amended its law relating to criminal history background checks for social services program workers (Act 136 (S. 3051), L. 2007, enacted June 3, 2008, at HI).

Kansas

Pre-employment Inquiries Law Summary
The state has enacted a law amending background check provisions for certain state fair workers (Ch. 107 (S. 565), L. 2007, enacted April 21, 2008, effective after its publication in the Kansas Register, at KS).

Michigan

Pre-employment Inquiries Law Summary
The state has amended its criminal background checks law with respect to workers in adult foster care facilities (P.A. 135 (H. 5894), L. 2007, enacted May 21, 2008, at MI).

Mississippi

Pre-employment Inquiries Law
Adult foster care facilities have been added to the list of health care facilities that are required to perform criminal background checks of employees (Ch. 423 (H. 1086), L. 2008, at MS ¶25-9000).

Missouri

Pre-employment Inquires Law
Missouri Governor Matt Blunt (R) signed a Memorandum of Agreement with Immigration and Customs Enforcement (ICE), the Missouri State Highway Patrol (MSHP) and the Missouri Department of Public Safety, creating the Gateway Taskforce to help combat illegal immigration and the concurrent crimes and problems. The taskforce will focus on illegal immigration itself and crimes such as harboring and transporting illegal immigrants. The MSHP members of the taskforce have all received extensive training and cross-designations allowing them to perform some customs officer duties under supervision and direction of ICE personnel. Over half have a second designation allowing them to perform certain immigration officer functions.

This taskforce comes less than three months after Blunt signed a comprehensive immigration reform bill (H. 1549) which requires all state agencies, local governments, and businesses that contract with the state for over $5,000 use E-Verify. For a complete summary of this law, see MO ¶26-9000.

New Hampshire

Criminal Background Checks Law
Anyone offered employment with any healthcare facility must submit a notarized criminal conviction record release authorization form. This applies to any employee, including volunteers, who will have direct contact with a client or will have access to client records, client tissue, body fluids or other biological material. Title XI, Chapter 151, Sections 151:2-d and 151:3-c, as amended and repealed by Ch. 268 (S.B. 420), L. 2008, effective Jan. 1, 2009. ¶30-23,600.17 and ¶30-23,600.18.

Pre-employment Inquiries Law
The state has enacted a law amending criminal background check requirements for certain health care facility workers (Ch. 268 (S. 420), L. 2007, enacted June 26, 2008, at NH ¶30-9000).

New York

Pre-employment Inquiries Law Summary
In cases against an employer alleging negligent hiring or retention of an applicant or employee, or alleging negligent supervision of the hiring manager, there may be a rebuttable presumption in favor of excluding the prior incarceration or conviction of any person. This rebuttable presumption applies if the employer learned about an applicant or employee’s past criminal conviction history, evaluated the relevant factors in accordance with the state’s correction law, and made a reasonable good faith determination that such factors weighed heavily in favor of hire or retention of the applicant or employee (S. 4956, L. 2007, enacted and effective September 4, 2008, at NY).

Discrimination Based on Arrest Records Law
Employers in the state of New York will be required to post a copy of the New York Correction Law relating to employment of persons with prior criminal convictions. Labor Law, Article 7, Section 201-f, as enacted by Ch. 465 (S.B. 7638), L. 2007, effective Feb. 1, 2009. ¶33-23,500.11.

Oklahoma

Pre-employment Inquiries Law Summary
Private prison contractors must now ensure that all employees and prospective employees submit to a national criminal history records check (S. 2066, L. 2007, enacted May 9, 2008, at OK).

South Carolina

Drug Testing Law Summary
The South Carolina Commercial Driver's License Drug Testing Act imposes reporting and recordkeeping requirements upon specified employers (Act 232 (S. 880), L. 2007, enacted May 21, 2008, at SC).

Vermont

Pre-employment Inquiries Law
The state has amended its law relating to dissemination of criminal conviction records to the public. Also, fees for criminal history record checks have been increased (Act 165 (S. 246), L. 2007, enacted May 22, 2008, at UT ¶46-9000).

West Virginia

Drug Testing Law
The West Virginia Alcohol and Drug-Free Workplace Act requires public improvement contractors to have and implement a drug-free workplace program (S. 657, L. 2008, at WV ¶50-8600).

Wyoming

Criminal Background Checks Law
Criminal history record information may be disseminated to central repositories of other states and to the Federal Bureau of Investigation by the division. This must be done in accordance with the rules and regulations set forth by the division that governs participation in an interstate system which allows for the exchange of criminal history record information. This may only be done with the assurance that the information will only be used for purposes that are lawful under the laws of the other states involved or the laws applicable to the Federal Bureau of Investigation. Title 7, Chapter 19, Article 1, Section 7-19-106, as amended by Ch. 7 (H.B. 64), L. 2008, effective July 1, 2008. ¶53-23,601.06.

If state auditor employees or applicants for employment has or will have access to confidential financial or accounting records, they must submit to fingerprinting so that state and national criminal history record information may be obtained. This is a condition of employment. Title 7, Chapter 19, Article 2, Section 17-19-201, Ch. 7 (H.B. 64), L. 2008, effective July 1, 2008. ¶53-23,601.21.

E-Verify Requirements Begin January 15, 2009 for Federal Contractors
The U.S. Citizenship and Immigration Services (USCIS) announced that a final rule to be published in the November 14, 2008 Federal Register requires certain federal contractors and subcontractors to use the federal government's E-Verify program beginning January 15, 2009. The final rule inserts a clause into federal contracts committing government contractors to use E-Verify for all its new hires and existing employees directly performing work under federal contracts.

On June 6, 2008 President George W. Bush amended Executive Order (EO) 12989 (as amended) in order to direct all federal departments and agencies to require contractors, as a condition of each future federal contract, to agree to use an electronic employment eligibility verification system designated by the Secretary of Homeland Security to verify the employment eligibility of all persons hired during the contract term and for all persons performing work within the United States on the federal contract.

On June 9, 2008 Homeland Security Secretary Michael Chertoff designated E-Verify as the electronic employment eligibility verification system that all federal contractors must use.

The final rule calls for the insertion of a clause in federal contracts and solicitations requiring that the contractor enroll in E-Verify to verify the employment eligibility of: (1) all newly hired employees, following completion of the Employment Eligibility Verification Form I-9 (Form I-9); and (2) all existing employees who are classified as "employees assigned to the contract." An "employee assigned to the federal contract" is any employee hired after November 6, 1986, who is directly performing work in the United States under a contract that includes the clause committing the contractor to use E-Verify.

Contracts covered under the final rule are prime federal contracts with a period of performance longer than 120 days and a value above the simplified acquisition threshold, which is $100,000.

All employers, including federal contractors, may enroll in E-Verify at any time without waiting for the January 15, 2009, effective date.

Under the final rule, federal contractors are required to enroll in E-Verify within 30 days of when they are awarded a federal contract or subcontract that requires participation in E-Verify.

The final rule can be found at: http://federalregister.gov/OFRUpload/OFRData/2008-26904_PI.pdf.

Supreme Court takes up immigration-related identify theft case. In a case informing on the federal government's use of identity theft criminal charges in worksite enforcement operations, the US Supreme Court granted certiorari in Flores-Figueroa v United States (Dkt No 08-108) on October 20, 2008, deciding to address whether the federal government must show that a defendant knew the means of identification he or she used belonged to another person (i.e., actual knowledge) in order to prove aggravated identity theft under 18 USC §1028A(a)(1). The aggravated identity theft provision imposes a mandatory consecutive two-year sentence enhancement on anyone who, during and in relation to certain enumerated offenses, "knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person..."

In 2000, Ignacio Flores-Figueroa, a Mexican citizen, entered the United States illegally and presented false Social Security and Alien Registration numbers in order to obtain employment at an Illinois steel plant. At the time, he used the name Horatio Ramirez, but neither the Social Security number nor the Resident Alien card had been issued to anyone of that name. In fact, the Social Security number was invalid. By 2006, Flores-Figueroa wanted to begin working under his real name. Accordingly, he presented his employer with a new Social Security number, purportedly issued under his real name, and a Permanent Resident card with his name and a registration number. Both documents were forgeries purchased by Flores-Figueroa from an individual in Chicago. Suspicious of the documents, his employer reported Flores-Figueroa to US Immigrations and Customs Enforcement (ICE). The ensuing ICE investigation revealed that none of the documents were issued to either Flores-Figueroa or to his former alias, Horatio Ramirez. Instead, the Social Security card bearing his name used a number issued to a minor. Likewise, the Permanent Resident card bore a number that was issued to someone else. Ultimately, a federal grand jury indicted Flores-Figueroa. He pled guilty to two counts of misuse of immigration and one count of entry without inspection. However, he pled not guilty to two counts of aggravated identity theft. At his bench trial, Flores argued that he could not be convicted of the charge because the federal government did not prove that he knew the identification he possessed belonged to other people, which he contended was required to convict him under 18 USC §1028A(a)(1). After rejecting the argument and finding him guilty of two counts of aggravated identity theft, the district court sentenced Flores-Figueroa to 51 months' imprisonment for the misuse of immigration documents and entry without inspection offenses and a consecutive 24 months' imprisonment for the aggravated identity theft offenses, resulting in a total sentence of 75 months' imprisonment.

The following bills introduced over the month would:

• amend Title 38, United States Code, to prohibit discrimination and acts of reprisal against persons who receive treatment for illnesses, injuries, and disabilities incurred in or aggravated by service in the uniformed services. Prohibiting Discrimination Against Injured or Ill Servicemembers (H.7003). Introduced 9/23/2008, by Rep. Lloyd Doggett, D-TX. Referred to Veterans’ Affairs.

• provide safeguards with respect to the Federal Bureau of Investigation criminal background checks prepared for employment purposes, and for other purposes. Federal Bureau of Investigation Criminal Background Checks Reform (H. 7033). Introduced 9/24/2008, by Rep. Robert C. Scott (D-VA). Referred to Judiciary.

• amend Title 38, United States Code, to improve the enforcement of the Uniformed Services Employment and Reemployment Rights Act of 1994, and for other purposes. Improving the Enforcement of the Uniformed Services Employment and Reemployment Rights Act (H. 7178). Introduced 9/27/2008 by Rep. Artur Davis, (D-AL). Referred to Veterans’ Affairs, the Judiciary.

• amend the Family and Medical Leave Act of 1993 to allow employees to take, as additional leave, parental involvement leave to participate in or attend their children's and grandchildren's educational and extracurricular activities and to clarify that leave may be taken for routine family medical needs and to assist elderly relatives, and for other purposes. Parental Involvement Leave for Children’s Educational Activities (H. 7233). Introduced 9/29/2008, by Rep. Carolyn Maloney (D-NY). Referred to Education and Labor.

• prohibit the Secretary of Labor from issuing, administering, or enforcing any rule, regulation, or requirement derived from the proposal submitted to the Office of Management and Budget entitled Requirements for DOL Agencies' Assessment of Occupational Health Risks (RIN: 1290-AA23). Labor Department Occupational Health Proposal Prohibitions (S. 3566). Introduced 9/24/2008 by Sen. Patty Murray (D-WA). Referred to Health.

• limit or deny civil service protection for a Federal employee if the appointment of that employee is a prohibited personnel practice that was made on the basis of political affiliation as prohibited under any law, rule, or regulation. Civil Service Protection Reform (S. 3583). Introduced 9/25/2008 by Sen. Sheldon Whitehouse (D-RI). Referred to Homeland Security and Governmental Affairs.

• amend Title VII of the Civil Rights Act of 1964 to establish provisions with respect to religious accommodations in employment, and for other purposes. Civil Rights Act of 1964 Reform Regarding Workplace Religious Accommodations (S. 3628). Introduced 9/26/2008 by Sen. John Kerry (D-MA). Referred to Health

E-Verify Requirements Begin January 15, 2009 for Federal Contractors
The U.S. Citizenship and Immigration Services (USCIS) announced that a final rule to be published in the November 14, 2008 Federal Register requires certain federal contractors and subcontractors to use the federal government's E-Verify program beginning January 15, 2009. The final rule inserts a clause into federal contracts committing government contractors to use E-Verify for all its new hires and existing employees directly performing work under federal contracts.

On June 6, 2008 President George W. Bush amended Executive Order (EO) 12989 (as amended) in order to direct all federal departments and agencies to require contractors, as a condition of each future federal contract, to agree to use an electronic employment eligibility verification system designated by the Secretary of Homeland Security to verify the employment eligibility of all persons hired during the contract term and for all persons performing work within the United States on the federal contract.

On June 9, 2008 Homeland Security Secretary Michael Chertoff designated E-Verify as the electronic employment eligibility verification system that all federal contractors must use.

The final rule calls for the insertion of a clause in federal contracts and solicitations requiring that the contractor enroll in E-Verify to verify the employment eligibility of: (1) all newly hired employees, following completion of the Employment Eligibility Verification Form I-9 (Form I-9); and (2) all existing employees who are classified as "employees assigned to the contract." An "employee assigned to the federal contract" is any employee hired after November 6, 1986, who is directly performing work in the United States under a contract that includes the clause committing the contractor to use E-Verify.

Contracts covered under the final rule are prime federal contracts with a period of performance longer than 120 days and a value above the simplified acquisition threshold, which is $100,000.

All employers, including federal contractors, may enroll in E-Verify at any time without waiting for the January 15, 2009, effective date.

Under the final rule, federal contractors are required to enroll in E-Verify within 30 days of when they are awarded a federal contract or subcontract that requires participation in E-Verify.

The final rule can be found at: http://federalregister.gov/OFRUpload/OFRData/2008-26904_PI.pdf.