State and Local Legislation Bulletin
Sharma Hammond, Esq., Editor · Issue 5, August 2007

In this Issue:
New Bills
Proposed Local Legislation
Other Bills to Watch Encouraging Illegal Immigration
IRLI Tip of the Month

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
New Bills

Florida HB 73
HB 73 was pre-filed on August 17, 2007. HB 73 is very similar to Oklahoma's HB 1804, drafted with technical assistance from IRLI, and enacted into law in May 2007 (see May State and Local Bulletin for details). Like the Oklahoma template, HB 73 prohibits restrictions on communication between public employees of state and local government agencies in Florida and the federal immigration agencies, replicating federal anti-sanctuary language in 8 U.S.C. 1373. Similarly, HB 73 would restrict driver's license eligibility to U.S. citizens, legal permanent immigrants and aliens with unexpired nonimmigrant visas. State and local public employers must use the federal electronic employment eligibility verification system to screen employees for work authorization. HB 73 includes IRLI model language requiring SAVE lawful presence verification for most state and local public benefits, already successfully implemented and enacted in Virginia, Georgia, Colorado, and — in November 2007 — in Oklahoma. IRLI has been contacted by officials in several other states seeking to adopt HB 73-like provisions.

Michigan SB 653
SB 653 was introduced in the end of July. This bill requires that a person is a U.S. citizen or lawfully admitted alien in order to receive a driver's license. SB 653 appears to be part of a trend of REAL ID compliant state measures enacted to ensure the continuing validity of state drivers licenses for federal ID purposes.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Proposed Local Legislation

Cobb County, Georgia
On August 14, the County Commissioners temporarily scrapped a proposed ordinance to fine employers who hire day laborers. IRLI believes that although there are viable methods for addressing this issue in an ordinance, the language must be very carefully crafted to avoid preemption challenges. For example, the federal employer sanctions statute, 8 U.S.C. 1324a(h)(2), bars both state and local governments from imposing criminal penalties or fines on employers who are found to have employed unauthorized aliens.

Surprise, Arizona
At the July 26, 2007 City Council meeting, there was discussion about developing an ordinance restricting day laborers from congregating near certain properties. IRLI believes that, in the absence of uniform federal enforcement, local governments are compelled to address the civic and law enforcement problems caused by day labor sites, which invariably worsen if neglected or ignored. However, failing to focus on unauthorized workers in the local ordinance is legally risky. For example Americans and legal aliens have a fundamental right to seek employment, and ordinances outlawing public job solicitation have been overturned on First Amendment grounds in all parts of the nation. A related legal risk is where an anti-solicitation ordinance is enforced as a nuisance control or public safety measure, without reference to the worker's employment eligibility status. If most of the violators cited were of a similar ethnic origin this would give illegal alien activists "profiling" claims.

See the Tip of the Month for further comment on local day labor regulation issues.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Back to top
Other Bills to Watch Encouraging Illegal Immigration

Illinois HB 1743
HB 1743 passed both houses and was enacted into law by Governor Blagojevich on August 13, 2007. This bill prohibits employers from discriminating against an employee based on their citizenship status. IRLI believes that although this bill provides an employer an exemption if they properly comply with the Basic Pilot Program, it is intended to unlawfully intimidate employers who might consider enrolling in this key federal program.

Illinois HB 1744
HB 1744 passed both houses and was signed into law by Governor Blagojevich on August 13th as well. This bill prohibits an employer in Illinois from enrolling in any employment eligibility verification system (including the Basic Pilot Program under federal immigration law). HB 1744 further proscribes any unit of local government from requiring an employer to use an employment eligibility verification system. IRLI believes this bill is preempted (or overridden) by federal law employment verification and anti-sanctuary statutes. IRLI is assisting in the preparation for test litigation in Illinois to challenge the constitutionality of these measures, which call for official resistance to and defiance of federal law.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Back to top
IRLI Tip of the Month:

Local Day Labor Regulation

Concerns about day laborers are among the most recurrent immigration-related controversies throughout the nation. All expert research studies have concluded that, nationally, between 75 and 95 per cent of individuals soliciting day labor at so-called pick-up sites are unauthorized alien workers. Day labor sites, despite their high public visibility, have remained virtually untouched by U.S. ICE enforcement activity. Localities that try to solve the problem by condoning "official" day labor sites find that conditions will invariably worsen over time. More unauthorized job-seekers are drawn to what becomes an attractive nuisance. Competition thus increases, and the unemployed men spread back out into neighborhoods in ever larger numbers.

Naïve official attempts to restrict day labor using "local" nuisance or public safety powers face two types of legal challenges. First, many courts have found limitations on solicitation for temporary work employment to be a facial restriction of fundamental rights or of protected speech under the First Amendment. Alternatively, enforcement has been challenged with "as applied" discrimination claims, typically where most of the violators cited are of a common national origin.

IRLI is working with several localities to develop viable constitutional day labor control ordinances. Given the need to insure compliance with existing federal and state laws, a viable local day labor regulatory scheme will likely be complex in structure, with significant municipal regulatory responsibilities. A threshold inquiry is whether state law authorizes the local government to regulate temporary employment or labor. A model approach could require multiple ordinances. For example:

(1) Ordinance A, requiring day labor sites or hiring halls to operate as temporary employment agencies and obtain a business license, applicable to both for-profit and non-profit operators;

(2) In larger cities, require at least one licensed agency facility per specified geographic area, e.g. each 'x' square mile area, available to all adult persons seeking temporary employment.

(3) Require Ordinance A licensees to comply with key regulatory elements:

• Recruitment (other than advertising) and hiring agreement to be concluded onsite under licensee supervision;
• Both employers and job seekers must register and submit a social security number, to be verified by the center using the online service provided by the Social Security Administration;
• Employer and day laborer must complete I-9 forms and eligibility document review on site, after the employment offer is made and accepted, but before the parties depart for the worksite. Require licensee to retain a confidential copy of Form I-9;
• Licensee must issue a business permit card to each registered employer and day laborer that is valid for the period of temporary employment, which they must carry and present to a city inspector upon demand while engaged in work;
• Licensee will offer employers who have previously completed registration and SSN verification, and have voluntarily enrolled for Basic Pilot online verification (through the licensee facility) business permit cards valid for longer periods, e.g. two-four years. Licensee to also offer long-term business permit cards to day laborers who have previously completed the three-step regulatory process, subject to any time limitation identified in the I-9 process.

(4) An Ordinance A enforcement process, including due process and appeal provisions, restricting, suspending or revoking agency licenses for ordinance violations.

(5) Ordinance A to exclude legal alien and citizen minors, participants in covered workshops, non-temporary employees, bona fide independent contractors, and voluntary workers from compliance.

(6) A separate Ordinance B would:

• prohibit unauthorized aliens (not employers) from soliciting or accepting employment within municipal boundaries;
• bar licensees from issuing business permit cards to employers or day laborers who fail to complete the registration and verification process;
• set conditions for worksite inspections by municipal inspectors, who may issue citations to and halt work by temporary workers without valid business permit cards;
• require municipal police to report unauthorized aliens detected by licensees or inspectors to U.S. ICE, and upon issuance of an immigration detainer, to arrest such aliens for transfer to federal custody;
• provide for appropriate due process and appeal procedures for persons claiming error in denial of a business permit card by the municipality.

The following model provisions are illustrative only. Please contact IRLI if you are currently drafting or thinking of enacting an ordinance to address the day labor problem.