Arizona employer law nets immigrants, not companies (Stateline)

Arizona employer law nets immigrants, not companies
Tuesday, November 30, 2010
By Daniel C. Vock, Stateline Staff Writer

PHOENIX — The video footage on the Phoenix morning news one Monday in mid-November showed dozens of heavily armed sheriff’s deputies breaking in on a business to round up and haul off illegal immigrants. The target of the morning raid was a landscaping company, but this was the 40th time in the past two years that the Maricopa County sheriff had raided a workplace. Among those previously targeted were McDonald’s franchises, a military contractor, sellers of printer cartridges, a meat packing plant, specialty metalworkers and trash collectors.

Like the other raids, the move on Nunez Creative Landscaping was a show of force that played well in front of TV cameras. Dozens of deputies stormed the premises. Suspects were handcuffed and led away. A news helicopter hovered overhead. Later, Joe Arpaio, the controversial lawman who brands himself as “America’s toughest sheriff,” held a press conference on the scene in time to make the early morning shows. Arpaio said half of the company’s 52 employees were suspected of being in the country illegally. His officers nabbed 17 of them that Monday and have taken away nearly 500 from various businesses since the workplace raids began.

The raid had another familiar aspect: The company’s owners were not targets, even though Arizona has the country’s toughest law against employers who hire illegal immigrants. The sheriff said his officers did not have enough evidence to go after the owners. Arpaio defended the raid when asked about it by a local reporter. “If we don’t get the employer,” he said, “we’re sure going to continue to get the employees that are here illegally using false identification.”

In fact, despite the dozens of raids, only two companies have ever been forced to close their doors under Arizona’s three-year-old employee verification law. The punishments in those cases were trivial: A Subway sandwich shop agreed to close on Easter and Thanksgiving, and a water park agreed to a 10-day suspension, but only after it already had gone out of business.

The Legal Arizona Workers Act may be tough, but even its supporters say it has been a disappointment. It faces plenty of opposition here in Arizona, especially among business owners and civil rights advocates.

The U.S. Supreme Court will hear a case next month to decide whether the Arizona law is legal, which could decide the fate of other state immigration laws, including Senate Bill 1070, the Arizona law passed this spring to give police more power to crack down on illegal immigration.

But just as important a question still lingers over Arizona’s employee verification law: Is it even effective?

New checks required

The 2007 law requires companies with Arizona workers to screen new hires using E-Verify, the online tool from the Department of Homeland Security that checks the legal status of applicants. On paper, the penalties for an employer failing to comply are steep: a 10-day shutdown for the first offense and, for a second violation, the loss of a business license, what is often called the corporate “death penalty.”

Thanks to the law, Arizona now has 70,000 company sites signed up for E-Verify. Even though Arizona accounts for only one out of every 50 people in the country, it has one-sixth of the nation’s companies using E-Verify.

The federal government sets rules for participation in E-Verify. First, employers can screen only new workers; they cannot go back and check out existing employees. Second, the companies can use E-Verify only for people they actually have hired. That is, the employers cannot run checks of candidates to “pre-screen” them before hiring them. And companies cannot use the tool to discriminate on the basis of race or ethnicity.

Bonnie Newman, a Phoenix lawyer who specializes in E-Verify issues, says some companies have hired additional personnel to handle the new requirements. Others are using outside vendors and some are simply adding it to the duties of their current human resources staff. “It does require for most companies a reengineering of their new hire process,” she says. “It adds a step and it adds complications.”

Newman is concerned that the reliance on E-Verify will spur identity theft. The E-Verify system is not foolproof. An independent analysis released last winter showed that the database flagged only about half of the applicants that it should have. The other half got through by using fake IDs of real people. For the most part, the system shows whether a person’s name, Social Security number and other vital information match federal records. It does not confirm whether an applicant is who he says he is.

In one case, making the system friendlier to legal workers opened up a vulnerability for identity theft. The Social Security Administration, whose records are used for E-Verify, now allows combinations of different components of a name to be used as a match, so “John James Smith” would match with “James John Smith” as long as the Social Security numbers are identical. Unfortunately, identity thieves have caught on and started issuing IDs with multiple names that will still clear E-Verify. Anecdotally, observers say identity theft is on the rise in Arizona as a result of the law. Last year, Arizona trailed only Florida for the most identity theft complaints per capita.

One of the sponsors of the law, Republican state Representative John Kavanagh, says the law has been a “toothless tiger” in that it does not give law enforcement enough tools. Specifically, Kavanagh, a former police officer, says prosecutors need subpoena power to investigate employers. The law does not give it to them. But business groups fought fiercely against that idea and could have derailed the whole bill had it remained, Kavanagh says.

A darker side

Lydia Guzman, president of Somos America (We are America), an immigrant rights coalition in Arizona, says the employee verification law has trapped undocumented workers in their current jobs. Companies cannot check the status of their current workers using E-Verify, but if the employee quits and tries to get another job, he or she will have to have their records checked. Some unscrupulous bosses know this, and use it against their employees, Guzman says. In one instance, she says, a cook at a Chinese restaurant was reluctant to complain when her boss slapped her and shoved her hand in a pot of hot soup. Another woman Guzman helped complained of sexual harassment at work but would not quit her job.

The raids have also hit home at Phoenix’s Neighborhood Ministries, where the father of four children who participate in the Christian group’s youth activities was arrested in one of the sweeps. Ian Danley, a pastor there, notes that, while 24 people were taken in that raid, no action has been taken against the employer. “As a person of faith, it is a justice issue,” he says. “If we are just going to punish the weakest, most vulnerable people, I have a problem with that.”

Although only two companies have been punished under the law, prosecutors are still pursuing a case against a third. That case, against Scottsdale Art Factory, has bounced between federal and state courts. As part of the back-and-forth, the company is now accusing the sheriff’s office of civil rights violations.

According to David Selden, a Phoenix employment lawyer who represents the company, some 50 sheriff’s deputies entered the firm’s buildings through multiple doors with guns drawn, pointing at employees and even the elderly mother of one of the owners. The officers separated Hispanics from whites and processed them separately. They took photos of the Hispanic suspects but not the white ones. In fact, one of the white workers spoke little English and needed a Bosnian translator but did not undergo the same scrutiny as the Hispanic workers. Some of the white workers were not asked for identification, Selden alleged in court documents. He says the differential treatment rendered the raid unconstitutional.

The employer verification law is one of several measures Arizona has enacted since 2004 to try to stem the tide of illegal immigration. The state imposed rules to require voters to prove their citizenship when they registered (a law struck down last month), limited state-funded services to illegal immigrants, passed the employee verification law and, this spring, gave police more power to enforce immigration law (a law now largely put on hold by federal courts).

When Arizona legislators passed this spring’s immigration enforcement law, they explicitly stated that their goal was to encourage illegal immigrants to leave the state. Indeed, the Pew Hispanic Center recently concluded that the population of unauthorized immigrants in a three-state region that includes Arizona was decreasing even before that law passed.

But Danley, the pastor, says most families he knows are staying put. The people who are leaving Arizona likely had not been there for long, he says. The moribund economy makes it hard for families to save up enough money to be able to move. “Right now,” Danley says, “people are in survival mode, and survival comes before escape.”