By RAYMOND RICO
Research Associate

     Despite the fact that, during their 2007 legislative sessions, over 20 states collectively introduced over 60 bills mandating some or all employers to use the employment eligibility verification Basic Pilot program (recently “rebranded” as “E-Verify” by the agency that administers it, the U.S. Dept. of Homeland Security, or DHS), most such bills did not advance far in the legislative process.  Only a very few bills moved significantly through the committees to which they were assigned, most that did pass through committee did not garner support on the floor of their legislative chambers, and only three were signed into law.  Many bills faced organized campaigns against Basic Pilot’s implementation and rallies at state capitols by employers who would be forced into the program, as well as by religious groups, immigrant rights groups, and labor unions. 

     Thus far on the state level, only Arizona, Oklahoma, and Tennessee have enacted legislation mandating use of Basic Pilot.  Colorado made technical corrections to its Basic Pilot law enacted in 2006, Georgia expanded on its Basic Pilot law enacted in 2006, and one state, Illinois, took a proactive stand against the use of Basic Pilot.  Local ordinances mandating Basic Pilot are also being introduced more frequently, but few are passing at the city and county levels. 

     Basic Pilot is a voluntary Internet-based program that allows employers to electronically verify whether newly hired employees are authorized to work in the United States.  Approximately 23,000 employers are enrolled in the program.  Basic Pilot, even in its current small and voluntary state, has serious flaws that have been well documented.  They include information inaccuracies, privacy lapses, and employer misuse of the program.  (For more information about problems with Basic Pilot, see Basic Pilot/E-Verify: Not a Magic Bullet, Sept. 17, 2007 (rev. Sept. 27, 2007).) 

     Some policymakers at the state and local levels looking to restrict the employment of unauthorized immigrants in their jurisdictions have looked to Basic Pilot as a means to achieving an easy “fix.”  Immigration restrictionists have advocated that participation in Basic Pilot be required of employers in order for them to gain or keep a business license or receive a business contract from the state or locality.  And some proposals would also have provided a “safe harbor” from penalties to employers that used Basic Pilot to verify employees’ work eligibility if the employees were later found to be unauthorized to work.

     On July 26, advocates celebrated a court decision striking down local ordinances that go beyond what is authorized in federal law.  That day, a judge of the U.S. District Court for the Middle District of Pennsylvania issued a decision against the city of Hazleton’s anti-immigrant ordinances, largely on federal preemption grounds.  The judge cited a clause in the immigration statute which provides that the statute’s employer sanctions provisions (i.e., those that impose penalties on employers that hire unauthorized workers) “preempt any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens.” 8 U.S.C. sec. 1324a(h)(2).  (For more on the Hazleton decision, see “Hazleton, Penn., Anti-Immigrant Ordinances Preempted and Unconstitutional, Federal Court Finds,” in this issue of Immigrants’ Rights Update.)

     State efforts to mandate the use of Basic Pilot, which is merely a temporary and voluntary federal program, are preempted under the immigration statute.  For this reason, among others, NILC and other civil rights organizations filed a lawsuit challenging Arizona’s harsh anti-immigrant law mandating the use of Basic Pilot and creating a state employer sanctions scheme to penalize employers that knowingly or intentionally hire unauthorized workers. 

     The following is a summary of legislation enacted in 2007 that requires employers to use Basic Pilot.  This article does not discuss bills that, though they may be designed to penalize employers who employ unauthorized workers, do not require use of Basic Pilot.  However, it is worth noting that although some states have passed employer sanctions legislation that does not explicitly mandate the use of Basic Pilot, the legislation may (1) require certain employers to verify the employment authorization of workers and (2) prohibit them from knowingly hiring unauthorized workers.  Such legislation creates an environment in which employers may feel compelled to use Basic Pilot for fear of the repercussions they face if they are found to have unauthorized workers under contract.  For example Arkansas’ HB 1024 mandates that “no state agency may enter into or renew a public contract for services with a contractor who knows that the contractor or a subcontractor employs or contracts with an illegal immigrant to perform work under the contract.”  Louisiana’s SB 753 and West Virginia’s SB 70 contain similar provisions.

Colorado

     In 2006, Colorado passed HB 1343, which mandates that the state of Colorado must not enter into a public contract with contractors who knowingly employ or contract with an undocumented immigrant to perform work, and requires that future contractors seeking to enter a contract with the state enroll in Basic Pilot.  During a special session of the legislature called by the governor specifically to debate immigration-related legislation, the legislature passed HB 06S-1017, which requires each employer in Colorado to attest that the employer has verified the legal work status of each employee, that the employer has not altered or falsified the employee’s identification documents, and that the employer has not knowingly hired an “unauthorized alien.”  Under the bill, employers are subject to random audits and fines if there is reason to believe that they have not complied with the employment eligibility verification and examination requirements. 

     On Mar. 16, 2007, Colorado amended its Basic Pilot provisions as passed via 2006’s HB 1343 by passing HB 1073.  Although HB 1073 also prohibits state government agencies from entering into public services contracts with employers that knowingly employ unauthorized workers, whereas the previous requirement mandated that all employees of such employers must have their work eligibility verified, HB 1073 states that contractors must verify the work eligibility only of new hires.

Georgia

     SB 529 became law in April 2006.  Among its many other provisions, SB 529 requires employers that have contracts with the state to verify the status of newly hired employees through Basic Pilot and mandates that public employers register for and participate in the program.  On May 18, 2007, Georgia expanded on its Basic Pilot mandate by passing SB 184, which prohibits the deduction of employees’ wages as a business expense for state income tax purposes unless they are authorized workers not in violation of the Immigration and Nationality Act.  Under SB 184, however, employers are exempted from this penalty if they participate in Basic Pilot. 

Arizona

     Arizona’s HB 2779, enacted on Apr. 3, 2007, requires that as of Jan. 1, 2008, all businesses in the state must use Basic Pilot to verify the employment eligibility of newly hired employees.  However, under the new law, a business found to be employing undocumented immigrants would benefit from a rebuttable presumption that it did not violate another provision in the state law prohibiting “intentionally” or “knowingly” employing undocumented workers if the business was enrolled in Basic Pilot at the time of the alleged violation.  (For a more complete summary of HB 2779, see “New Arizona Law Requires Employers to Use Flawed Employment Eligibility Verification Basic Pilot,” Immigrants’ Rights Update, July 20, 2007.) 

     On Sept. 4, 2007, NILC joined with the law firm of Altshuler Berzon, the American Civil Liberties Union (ACLU) Immigrants’ Rights Project, the ACLU of Arizona, and the Mexican American Legal Defense and Educational Fund (MALDEF) to file a lawsuit in federal court challenging HB 2779 as enacted.  The suit was filed on behalf of Chicanos Por La Causa and Somos America, two nonprofit employers in the state.   On Sept. 14, this lawsuit was consolidated with an earlier suit filed by several trade associations and the Arizona and national chambers of commerce.  The lawsuit filed by NILC seeks to have the law voided as unconstitutional because it is an impermissible attempt to preempt federal law and violates workers’ due process rights.  (For more on the lawsuit, see “Lawsuit Challenges Arizona’s Employer Sanctions Law as Being in Conflict with Federal Law” in this issue of Immigrants’ Rights Update.)

Oklahoma

     HB 1804, enacted on May 7, 2007, mandates that every public employer in Oklahoma register and participate in Basic Pilot.  The new law, which is slated to go into effect on Nov. 1, provides that employers may not enter into state contracts for physical performance of services unless they register and participate in Basic Pilot to verify the employment eligibility of all new hires.  Immigrants’ advocates and clergy have begun efforts to stop the bill from going into effect and may consider challenging the bill in court.  On Sept. 5, 2007, State Representatives Bill Nations and Wallace Collins delivered a letter to Oklahoma Attorney General Drew Edmondson questioning whether HB 1804 is enforceable and whether it conflicts with federal immigration law. 

Tennessee

     Tennessee focused on employment of undocumented immigrants by introducing a slew of bills in 2007.  On June 26, SB 202 became law (in the Tennessee House of Representatives it was known as HB 0729).  SB 202 creates the criminal offense of knowingly employing or recruiting for employment an undocumented immigrant.  However, SB 202 provides that a person would not be considered to have committed the offense of knowingly employing an undocumented immigrant if the person had verified the employment eligibility of the worker prior to employment by using Basic Pilot.  (This provision presents employers with a quandary, since under the federal immigration statute employers are not to complete the employment eligibility verification process on new hires until after they are hired, a provision that is intended to discourage employers from discriminating against job applicants on the basis that they appear or sound “foreign.”)  SB 202 requires any state or local governmental agency that has reason to believe a violation has occurred to notify the Tennessee Dept. of Labor and Workforce Development. 

Illinois

     Illinois pioneered a new way to look at the impact that Basic Pilot has on workers by enacting two laws that create critical privacy and antidiscrimination protections relative to the program.  HB 1743 makes it a civil rights violation for an employer to require the reverification of an employee’s work eligibility or to take any adverse action against an employee based on the receipt of information from any federal agency that the employee’s name does not match the Social Security number under which the employee has been working unless the U.S. attorney general issues regulations otherwise.  HB 1743 also makes it a civil rights violation for an employer to use Basic Pilot to conduct employment eligibility verification prior to hiring or to take any adverse action against an employee for whom the Basic Pilot has issued a “tentative nonconfirmation” of employment eligibility. 

     Additionally, HB 1744 prohibits Illinois employers’ participation in any employment eligibility verification program until the Social Security Administration and DHS are able to demonstrate that their databases are very highly accurate.  Finally, HB 1744 establishes an advisory council to study the effect of employment eligibility verification programs on employers and employees within Illinois.

     (For more on the Illinois laws, see “New Illinois Laws Create Important Protections Against Flaws in Employment Eligibility Verification Basic Pilot,” in this issue of Immigrants’ Rights Update.)

Local Ordinances

     Since the Hazleton, Pennsylvania, ordinances were passed, many other local governments have sought to enact policies that crack down on employers who hire unauthorized immigrant workers but that do not specifically mandate the use of Basic Pilot.  A measure enacted in Mission Viejo, California, is an exception to this, since it explicitly requires employers with city contracts, as well as the city itself, to use Basic Pilot.  Under the ordinance, which took effect in July, contractors doing business with the city who do not participate in the program will lose their city contracts.

     By now, most of this year’s legislative sessions have come to a close.  Thus, most of the bills mandating the use of Basic Pilot that were introduced in states’ and localities’ 2007 legislative sessions are dead.  Some bills are still pending, however, and new ones are being filed to be considered in 2008.  There is evidence that cities have revisited their proposals in the wake of the federal court’s decision regarding the Hazleton ordinances finding their employment-related provisions to be unconstitutional.  On the federal level, members of Congress have introduced bills to mandate that federal contractors use Basic Pilot, and DHS is looking to expand the program to the extent it can without further congressional legislation.  Regardless of what happens at the federal level, Basic Pilot will continue to be a key issue debated by state and local entities for the foreseeable future.