Punishment for Hiring Undocumented Workers OK - Free Enterprise
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Punishment for Hiring Undocumented Workers OK

If you live in a state or locality that is considering making it mandatory for employers to utilize the federal E-Verify system, or that wants to punish those who hire undocumented workers, pay attention.

In a 5-3 decision issued on Thursday, the Supreme Court upheld Arizona's mandatory E-Verify statute--which also revokes and/or suspends business licenses of employers who hire undocumented workers.

It may be time to start lobbying.

As you may know, employers who knowingly hire undocumented workers are subject to civil and criminal penalties under the federal Immigration Reform and Control Act.

While the Act bars states from imposing their own civil and criminal penalties, it contains a savings clause that explicitly allows states to utilize licensing provisions to punish employers for similar infractions.

According to the Supreme Court, federal law does not preempt Arizona's statute, which punishes infractions by revoking and suspending state and local business licenses. In fact, license revocation falls squarely into the savings clause above.

Moreover, the court found that the federal statute creating the employment database does not preempt Arizona's requirement that all employers use the E-Verify system to determine whether a new employee is documented.

At the moment, very few states have imposed their own employer sanctions and/or E-Verify mandates, however, this is unlikely to remain unchanged.

Instead, in the wake of this decision, you should expect see local and state laws pop up across the country that mandate use of E-Verify and revoke business licenses in the event that you knowingly hire undocumented workers.

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