State restaurant association executives are battling a rising tide of immigration-related legislation as states — frustrated by little federal action on the issue and emboldened by a recent Supreme Court decision upholding an Arizona law — increasingly take matters into their own hands.
Lawmakers have shifted into overdrive since the court’s late-May decision supporting a state’s right to mandate the use of a worker-eligibility database known as E-Verify and revoke the licenses of businesses that do not.
Just last month Alabama passed an immigration law characterized as being even tougher than Arizona’s, which has been referred to by opponents as the “business death penalty.”
State executives anticipate that the activity will cascade down
to the local level, resulting in a patchwork of immigration laws that could be especially troublesome for operators conducting business across state lines and in different municipalities.
“Allowing this to be resolved through the courts may be [the politicians’] strategy,” said Jot Condie, president and chief executive of the California Restaurant Association and president of the Council of State Restaurant Associations, alluding to an election cycle that inhibits the tackling of controversial issues. “But you’re going to have a very complex set of laws dealing with undocumented workers in states throughout the country, and city officials getting into the immigration issue.”
The floodgates already are open. In the first three months of 2011, states have introduced 1,538 bills and resolutions related to immigration, a number that exceeds the same period in 2010 by 358, according to the National Conference of State Legislatures.
Much of the focus is on E-Verify, a Web-based system housing data from the Department of Homeland Security and the Social Security Administration that allows employers to check electronically the employment eligibility of job applicants.
Established in 1996 and formerly known as Basic Pilot, E-Verify originally was made available on a voluntary basis to employers in states with large immigrant populations, such as California and Texas. Eighteen states now require its use by select employers, with 10 joining the group just this year.
“The Supreme Court decision gave a road map for states that want to pass E-Verify laws,” said Angelo Amador, vice president of labor and workforce policy for the National Restaurant Association. He said the NRA is now pursuing a potential solution in the form of a federal E-Verify mandate.
“Our members are tired of following more and more laws,” he said. “Fifty percent are doing business across state lines and have more centralized H.R. [functions], so if they have to follow laws in 50 states, it gets complicated.”
Immigration has long proven problematic for the industry. According to the Pew Hispanic Center, as of March 2010 there were about 11.2 million unauthorized immigrants living in the United States. An earlier study by the center estimated that 12 percent of undocumented immigrants worked in food preparation.
The government has upped investigations of employers suspected of using illegal labor. According to a statement by DHS secretary Janet Napolitano, as of late June Immigration and Customs Enforcement had audited more than 4,700 employers since January 2009 and debarred more than 320 companies and individuals — more than the total number made under the Bush administration.
Despite this scrutiny, many states have turned their attention to immigration. In 2007 Arizona passed the Legal Arizona Workers Act, prohibiting employers from knowingly hiring illegal workers and requiring them to use E-Verify or risk losing their licenses.
The law was challenged by the U.S. Chamber of Commerce, among others. Its journey through the courts culminated in a review by the Supreme Court, which in late May upheld the law in a 5-3 decision. The court has not reviewed the state’s controversial 2010 immigration law, which requires immigrants to carry documents proving their right to be in the United States and allows police to detain anyone suspected of being in the country illegally.
The Supreme Court decision ignited an explosion of legislative activity, with Alabama Gov. Robert J. Bentley in early June signing into law a measure mirroring some provisions of the Arizona law and going even further by barring illegal immigrants from attending college, soliciting work or renting property.
Officials of the Alabama Restaurant Association informed members that the first time a business is caught knowingly employing an illegal immigrant, its license would be suspended for up to 10 days. The second time, it would be revoked. Businesses that use E-Verify to check work eligibility, however, would not be held accountable if a worker is later found to be illegal.
U.S. Rep. Lamar Smith, R-Texas, in June introduced the Legal Workforce Act, or H.R. 2164. Smith’s bill would replace the paper-based I-9 system with E-Verify. The mandate to use E-Verify would be phased in, with businesses of 10,000 employees or more required to be in compliance within six months of the bill’s enactment, businesses with 500 to 9,999 employees required to use E-Verify within 12 months, businesses with 20 to 499 employees within 18 months, and those with one to 19 employees within 24 months.
While Smith’s bill would pre-empt state laws requiring the use of E-Verify, it still would give states the power to withhold licenses from businesses that choose not to use it. Smith’s proposal also would create a safe harbor from prosecution for employers who use E-Verify and unknowingly hire an illegal immigrant because they received incorrect eligibility information.
The NRA largely supports Smith’s measure, which also would give employers a 30-day window in which to correct technical infractions and allow verification by telephone, Amador said.
According to the DHS’s Napolitano, more than 269,000 employers use E-Verify, and the system has processed 16.4 million queries to date.
Still, some worry about glitches within the E-Verify system, especially concerning the accuracy of its data. And where the Smith bill is concerned, they find the two-year time frame for compliance troublesome.
“There are 6.47 million employers in the U.S.,” said Scott Vinson, vice president of the National Council of Chain Restaurants. “To suddenly require them to use this system is alarming, to say the least. We’re concerned it will overwhelm the system and cause massive disruption.”
In addition, Smith’s bill is a far cry from the comprehensive immigration reform the industry has been advocating for years, focusing on enforcement versus stemming the flow of illegal immigrants coming into the country and creating pathways to citizenship for those already here.
“There seems to be an approach here that is being applied disproportionately [on the business community],” said the CRA’s Condie. “You have business owners who are expected to be acting as if they worked for ICE.”
Contact Robin Lee Allen at robinlee.allen@penton.com.
