State laws that were passed out of frustration after the last failed effort to overhaul the nation’s immigration laws are now being enforced _ some more than others.
Big companies with national operations have started to confront the hassle of trying to comply – or weighing the risks of eluding _ dozens of different state immigration laws.
A federal proposal that passed the U.S. Senate last summer sought to create a uniform standard. It would have pre-empted most state acts. But reluctance in the House of Representatives has left the federal debate on perilous footing, allowing states such as South Carolina to step in.
State legislators are returning to work this month to begin their legislative sessions. Some probably will be looking for guidance to fill the void left by Washington gridlock.
While Arizona has drawn the most attention, it’s South Carolina that’s being touted as the new model for a successful workplace compliance program.
“South Carolina is the gold standard, if you believe in a lot of enforcement,” said Tamar Jacoby, the president of ImmigrationWorks USA, which represents employers who seek a federal overhaul. “They spent a lot of money to set up a separate infrastructure and did a very effective enforcement of their workplace stuff. Arizona, by contrast, never set up an infrastructure and I think did a rather poor job.”
There are more than two dozen kinds of state-employment immigration laws or variations thereof. Most center on the federal E-Verify program, which allows businesses to check the legal status of new hires. Critics complain that the system is riddled with problems.
All employers in Alabama and Arizona are required to use the system. In Missouri, public employers and some public contractors must use it. Last year, North Carolina amended its statewide E-Verify law to exclude more temporary workers.
For some state lawmakers, passing state laws was more of a political gesture to appease fed-up constituents. But South Carolina is cracking down.
The South Carolina Illegal Aliens and Private Employment Act requires most employers to verify the legal status of new hires or risk getting their business licenses suspended. Farmers, maids and fishermen are exempt.
State officials have conducted nearly 9,000 random audits of businesses in two years and cited more than 640 companies with failure to comply.
More than 15,800 South Carolina businesses signed up for E-Verify in 2012 – the first year of the state program – more than any other state that year.
More than 90 percent of businesses were in compliance.
“The main objective is to ensure that available jobs in South Carolina are provided to individuals who are legally in the United States and authorized to be employed,” said Lesia Kudelka, a spokeswoman for the state’s Office of Immigrant Worker Compliance.
In contrast, fewer than half of Arizona businesses have signed up for E-Verify despite statewide compliance laws passed in 2008. The Arizona attorney general cites just two cases of companies receiving notice of violations under the Legal Arizona Workers Act.
In South Carolina, big business is paying attention. Internal calls and emails have been flying among managers at big companies who are trying to make sure all divisions are complaint, said Ian Macdonald, an attorney at Greenberg Traurig who specializes in immigration compliance.
“A lot of them are not completely compliant,” Macdonald said. “When you got a retail company and they’re faced with the prospect of losing their business license, it has a significant impact on their operations.”
The U.S. Supreme Court has twice looked at state enforcement of immigration laws. The best-known case is a 2012 decision that upheld Arizona’s so-called “show me your papers” provision, which requires police to verify the status of people who they suspect are in the country illegally. For employers, a more significant decision came a year earlier. The Chamber of Commerce v. Whiting decision upheld another Arizona law that allowed the state to suspend the business licenses of employers who hire unauthorized workers.
A collective sigh of relief could almost be heard throughout the Southeast, where several states had copied the Arizona law. But big business just sighed.
Large companies with operations across borders would have to face what opponents of state immigration laws have long warned of: having to comply with dozens of different state laws in addition to federal requirements.
“Isn’t life complicated enough?” asked former U.S. Rep. Bruce Morrison, D-Conn., who led the House immigration subcommittee from 1989 to 1991 and now advises businesses on immigration matters. “In pursuit of the ideal of making sure people who work are legal, which is a legitimate objective, you can make life miserable for almost everybody, most of whom are just trying to do their job.”
In South Carolina, Derek Nattier was stunned to learn in November that his Columbia valet business was being cited for failing to verify the status of 68 new hires.
Most of the workers are college students, and all have driver’s licenses. He thought that was enough to prove that they could work legally. But not in South Carolina.
Southern Valet was placed on a year’s probation. It must submit quarterly reports documenting that all new employees are properly verified. It’s also been listed among cited companies on the state’s website.
Kudelka said the immigrant compliance office had received few complaints from businesses and that the majority of violations were at small companies.
While no one has yet to lose a license, the most effective aspect of the law is the motivation to avoid the public shaming of being listed among other wrongdoers.
Fred Manning, a South Carolina employment attorney who advises employers on workplace compliance, said the state had communicated well with his clients but that they didn’t like giving the impression that their companies were lax in their procedures – even if it’s only temporary.
“I haven’t heard anyone say, ‘It’s going to give our competitors an edge,’ but it’s more of ‘We want to be seen as a good community and corporate entity,’ ” Manning said. “Nobody wants their name up for something that was done inappropriately.”
Kris Kobach, who’s now the secretary of state in Kansas, is widely known as one of the main architects of the Arizona law that spawned so many state versions. He hasn’t been able to attract the same interest in his own state. Kansas lawmakers’ proposals to require businesses to verify their workers’ immigration status and give local law enforcement officers the right to check the legal status of those they stop have failed to gain traction. Kobach did successfully press for legislation requiring birth certificates to register and photo identification to vote.
With the exception of North Carolina, there’s been little new legislative activity on workforce enforcement in the past year as the federal government plunged into the federal debate.
Some states have recently made it harder to identify unauthorized workers in the labor force. Illinois bars employers in the state from using E-Verify. In 2011, California Gov. Jerry Brown signed a law that prohibits state municipalities from passing mandatory E-Verify rules.
But that might change rapidly.
Only a few months remain before Washington is consumed by the midterm campaign season. Republican leaders in the House, who’ve struggled to gain support for a major overhaul from the right wing of their party, must decide what they’re going to do.
If House Speaker John Boehner, R-Ohio, shelves immigration for this term, Congress essentially would be ceding control to the states, where one-sided ideologies may dominate. Some state leaders would be more than happy to step in.
Most of the toughest laws are in the South, but observers see the potential of those laws bleeding north.
The matter might return to Kansas, where conservatives have total control of the government.
Michigan and Wisconsin, both of which have conservative governors, recently passed right-to-work laws that limit union activity. Bruce Buchanan, a former trial specialist for the National Labor Relations Board, said the issues might not be the same but the politics were similar.
“I wouldn’t be surprised at all to see them go after state immigration laws,” said Buchanan, who now advises employers on immigration compliance for Tennessee-based Siskind Susser. “The argument is the federal government’s not doing their job. We’re going to have to do it for them.”