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PHOENIX — A federal judge is raising some last minute questions about Arizona’s new employer sanctions law that could provide the grounds for him to declare it unconstitutional.
Judge Neil Wake on Tuesday told attorneys to explain to him at today’s hearing what appeal rights if any companies have to contest a report from a federal government database that a worker is not in the country legally.
The question is crucial to the future of the state statute. That’s because the U.S. Constitution requires all laws to protect the “due process” rights of those accused of breaking them to prove they are innocent.
Even if Wake upholds the validity of the law, he might limit its scope. He also is asking the lawyers for both sides of the argument whether a company can be penalized for having an undocumented worker already on its payroll before the state statute took effect Jan. 1.
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Lou Moffa Jr., one of the lead attorneys for businesses challenging the statute, said Wake’s questions suggest the judge now realizes there are flaws in the law.
That statute permits a state judge to suspend or revoke all licenses of any firm found guilty of knowingly or intentionally hiring those not authorized to work in this country.
Another provision requires companies to verify a new worker’s legal status through the federal government’s E-Verify program. And it stipulates that any firm which uses that program has a “rebuttable presumption” it did not break the law.
Moffa said one problem is that state judges, reviewing complaints against employers, cannot legally determine themselves if a worker is in this country legally.
Instead, judges can rely only on information from a separate federal database of authorized workers. If that database says the worker is not legal, a judge has no choice but to find the company guilty.
Moffa said Wake’s question goes directly to the contention of employers that there is no way for a company to appeal the findings of either database, even if they have actual evidence the worker is, in fact, a U.S. citizen.
He said that means a firm has no choice but to dismiss a new employee if the EVerify report says the worker is not legal or face suspension or loss of state license. And Moffa said it also means employers who are accused with hiring undocumented workers have no way to dispute the charges because they cannot challenge the sole piece of evidence the federal database that judges are permitted to consider.
Business groups and others contend the statute is unconstitutional because only the federal government is permitted to penalize firms for hiring undocumented workers. But Wake, at earlier court hearings, has sided with attorneys for the state who point out that federal law does have an exception permitting states to rescind the licenses of companies who break the law.
sierravistan wrote on Jan 17, 2008 3:02 PM: