1 Capell & Howard, P.C. 2011 Top 10 DO’s and DON’T for Employers under the Alabama Immigration Act Thomas M. Eden, III Attorney Capell & Howard, P.C.
2 Capell & Howard, P.C. 2011 Don’t knowingly employ, hire for employment, or continue to employ an unauthorized alien to perform work within the State of Alabama 2
3 Capell & Howard, P.C. 2011 DON’Tknowingly employ, hire for employment, or continue to employ an unauthorized alien to perform work within the State of Alabama You must verify the status of every new employee through the federal E-Verify procedures and fire unauthorized aliens. 3
4 Capell & Howard, P.C. 2011 4 DO enroll in E-Verify
5 Capell & Howard, P.C. 2011 5 DO enroll in E-Verify Do schedule Form I-9 Supervisor Training because the E-Verify system is only as good as the information collected.
E-Verify is an employer’s only get out of jail card with Immigration Compliance and Enforcement (ICE) and the only safe harbor under the Alabama Immigration Act.
17 states currently mandate E-Verify use, recently adding Georgia, Indiana, Louisiana, North Carolina, South Carolina, Tennessee and Virginia
6 Capell & Howard, P.C. 2011 DO Count the Cost State Contracting Obligations: Article 9 states, “as a condition for the award of any contract, grant or incentive by the state, any political subdivision thereof, or any state-funded entity to an employer that employs on or more employees, the employer shall not knowingly employ an illegal alien and shall attest to such, by sworn affidavit signed before a notary.”
7 Capell & Howard, P.C. 2011 State Contracting Obligations (cont.) Must provide documentation establishing E-Verify enrollment Must continue to use E-Verify throughout contract E-Verify every newly hired employee in accordance with federal rules and regulations It only takes one employee to require compliance
8 Capell & Howard, P.C. 2011 State Contracting Obligations (cont.) Sub-contractors same as for contractors except:
Must attach to the sworn affidavit documentation establishing that the sub-contractor is enrolled in the E-Verify program
Attorney General may bring an action to suspend the business license and permits
Court shall order business entity to file signed sworn affidavit with the local District Attorney within 3 days
10 Capell & Howard, P.C. 2011 State Contracting Penalties (cont.)
Affidavit must state that the employer has terminated every unauthorized alien and that the business will not knowingly or intentionally employ an unauthorized alien in the state
Sworn affidavit must state E-Verify enrollment and must provide copy of Memorandum of Understanding
11 Capell & Howard, P.C. 2011 State Contracting Penalties (cont.) Second Violation:
Contract to be terminated after providing notice and opportunity to be heard
Attorney General to bring action to permanently revoke business licenses and permits of the employer
Same penalty and disqualification procedures apply to sub-contractors
Contractor enrolled in E-Verify shall be found not guilty of violation
Secretary of State shall reflect suspension of business license and permits to do business in Alabama
ICE Penalties I-9 Penalties for Knowing Hire/Continuing to Employ Violations Three Tiers of Violators - Penalty Amounts:
ICE Penalties I-9 Penalties for Substantive and Uncorrected Technical Violations for each I-9 Form:
14 Capell & Howard, P.C. 2011 DO terminate any employee if you become aware of their illegal status
15 Capell & Howard, P.C. 2011 The employer could face severe penalties involving probation and suspension of business license. DO terminate any employee if you become aware of their illegal status
16 Capell & Howard, P.C. 2011 Article 15 – Any Employer Penalties Any Alabama employer who is found to have knowingly employed an illegal alien or continued to employ after April 1, 2012 Mandated that E-Verify be used First Violation:
By a court of competent jurisdiction
Order the termination of the unauthorized alien
Must file signed, sworn affidavit with local District Attorney within 3 days that employer has terminated every unauthorized illegal alien and will not knowingly hire in the future
Direct the state, county or city to suspend the business license and permits for a period not to exceed 10 days at the location where the unauthorized alien performed work
Before business license reinstated, employer shall submit to the court a signed, sworn affidavit that in compliance with E-Verify Memorandum of Understanding
Business license reinstated 1 day after above is completed
18 Capell & Howard, P.C. 2011 Article 15 – Any Employer Penalties (cont) Second Violation:
Court shall direct the state, county or city to permanently revoke all business licenses and permits where the illegal unauthorized alien worked
Court shall direct the governing bodies to forever suspend the business licenses and permits throughout the State of Alabama
Throughout the proceedings good faith compliance with E-Verify is a defense
19 Capell & Howard, P.C. 2011 DON’T deduct from state income or business taxes any wages, compensation or remuneration of any kind, whether monetary or otherwise, for services paid to an unauthorized alien
20 Capell & Howard, P.C. 2011 DON’T deduct A business entity or employer who knowingly fails to comply will be liable for a penalty equal to 10 times the business expense deduction claimed.
22 Capell & Howard, P.C. 2011 DON’T discriminate An employer may be liable for failure to hire a job applicant who is a United States citizen, or who is an alien authorized to work in the United States, while retaining any employee who the employer knows, or reasonably should have known, is an unauthorized alien. The employer can be sued by the unsuccessful applicant in an Alabama civil action for discrimination under Section 17 and awarded compensatory relief, court costs and reasonable attorney’s fees.
23 Capell & Howard, P.C. 2011 DON’T enter into contracts with illegal aliens
24 Capell & Howard, P.C. 2011 DON’T enter into contracts with illegal aliens The Act provides that no court shall enforce the terms of, or otherwise regard as valid, any contract between a party and an alien unlawfully present in the United States.
25 Capell & Howard, P.C. 2011 DON’T pick up day labor in your vehicle
26 Capell & Howard, P.C. 2011 DON’T pick up day labor in your vehicle The Act makes it illegal to stop a vehicle on a street, roadway or highway “to attempt to hire or hire and pick up passengers for work at a different location if the motor vehicle blocks or impedes the normal movement of traffic.” This applies regardless of citizenship or alien status.
27 Capell & Howard, P.C. 2011 DON’T house an illegal alien
28 Capell & Howard, P.C. 2011 DON’T house an illegal alien It is illegal to “conceal, harbor, or shield” an alien from detection in any place, including any building or vehicles, if the person knows or recklessly disregards that the alien is illegal in the United States. Similarly, it is illegal to induce an alien to come to or reside in Alabama if the person knows or recklessly disregards the fact that the alien will be in violation of federal law.
29 Capell & Howard, P.C. 2011 DON’T transport an illegal alien
30 Capell & Howard, P.C. 2011 DON’T transport an illegal alien It will be illegal to transport an alien “in furtherance of the unlawful presence of the alien in the United State, knowingly or in reckless disregard to the fact that the alien has com to, entered, or remained in the United States in violation of federal law.”
31 Capell & Howard, P.C. 2011 DON’T rent to an illegal alien
32 Capell & Howard, P.C. 2011 DON’T rent to an illegal alien It is illegal to harbor an unlawful alien by entering into a rental agreement with the alien, if the person knows or recklessly disregards the fact that the alien is in the United States illegally.
Schedule I-9 Supervisor Training because the E-Verify system is only as good as the information collected on your I-9 forms – must be retained as before;
Put an E-Verify policy in your employee handbook;
Conduct I-9 Audit for all past hires - with professional signoff that you are currently in compliance;
Build a paper trail with all SSA no match employees or “unable to determine work eligibility” from I-9 Audit; and
Stay informed Judge Blackburn Hearing August 24 9:00am.
34 Capell & Howard, P.C. 2011 Immigration To Do List for Employers
35 Capell & Howard, P.C. 2011 How to Contact Speaker: Tommy Eden Attorney at Law TEL: (334) 241-8030 FAX: (334) 501-4512 E-Mail: firstname.lastname@example.org Blog: www.alabamahrlaw.blogspot.com Website: www.capellhoward.com Capell & Howard, P.C. 3120-B Frederick Road Opelika, AL 36801 Capell & Howard, P.C. 150 South Perry Street Montgomery, AL 36104