Frequently Asked Questions About Employer Sanctions Law
Q “How will you prevent racial profiling in the enforcement of this new law?”
A Race will play no part in the County Attorney’s enforcement of the Legal Arizona Workers Act. All complaints that provide credible information that an employer has knowingly hired an unauthorized alien will be acted on. Enforcement will be entirely race-neutral. The County Attorney does not consider an employee’s race relevant to his or her immigration status.
Q “How will your office deal with ‘race-based’ complaints?”
A Because the County Attorney does not believe an employee’s race is relevant to his or her immigration status, a complaint based solely on considerations of race will not merit further investigation.
Q “If a complaint claims that an employer has hired unauthorized aliens based solely on the fact that the employer hires only workers of one race or ethnicity, will you investigate?”
A If the only information available to the County Attorney pertains to an employee’s race or the language the person is speaking, the matter will not merit further investigation.
Q “Will your office pursue charges against persons who knowingly submit false and frivolous complaints?”
A Yes. If this office has credible information that a person has knowingly submitted a false and frivolous complaint, this office will take all appropriate action.
Q “Will the County Attorney act on every complaint it receives?
A The County Attorney will review every complaint that is submitted to determine whether reasonable grounds for further investigation exist and take all appropriate action in light of the complaint and the resources of the office.
Q “What is a false and frivolous complaint?”
A A complaint is false and frivolous if the complaint is untrue, the person making the complaint knows that it is untrue, and the purpose for making the complaint is to harass the employer. A mistaken belief that a complaint is accurate is not a violation of the law.
Q “What does ‘knowingly’ mean?”
A Knowingly means that the employer had actual or “constructive” knowledge that an employee was an unauthorized alien. “Constructive” knowledge exists, for example, where an employer had credible information that his employee was an unauthorized alien but chose to ignore that information and declined to inquire into the actual status of the worker.
Q “Does the statute apply to persons employed outside of Arizona?”
A The County Attorney’s position is that the statute only applies to employees who perform actual work in Arizona.
Q “Does the statute apply to independent contractors or people who are hired by a subcontractor?”
A The statute was changed on May 1, 2008 to make it clear that the law prohibits hiring unauthorized aliens as employees in an employment relationship. The law does not apply to independent contractors. It is the County Attorney’s position that an independent contractor also includes an employee of one’s contractor or subcontractor. The law lists various factors to determine if a person is an employee or an independent contractor, but generally, a person is legally considered an employee if the employer has the right to control and direct the work of the person. In the case of independent contractors and employees of subcontractors, the employer tells the workers of the subcontractor what the employer wants done but does not direct them in how they accomplish that, and this law does not apply to individuals or companies who hire independent contractors or subcontractors.
Q “If I hire a person to watch my children, come clean my house, or do yard work at my house, can I be penalized if the person doing the work is an illegal alien?”
A It is the position of the County Attorney that the provisions of the Legal Arizona Workers Act do not generally apply to persons who hire casual domestic help for cleaning, watching children at a person’s home, or similar duties. These types of situations often do not involve a true employment relationship under federal immigration law, and there is usually no business license to take action against for persons who hire casual domestic help. As such, it is the County Attorney’s position that the Legal Arizona Workers Act does not generally apply to the hiring of casual domestic help on an informal basis to work in a person’s own place of abode.
Q “Does the statute apply to individuals who were hired before January 1, 2008 but who are still employed as of that date and beyond?”
A The statute was changed on May 1, 2008 to state that it applies only to persons hired on or after January 1, 2008.
Q “Is it true that employers are ‘guilty until proven innocent’”?
A No. The state bears the burden of proving that an employer has violated the law.
Q “Is it true that if an employer is accused of knowingly hiring an unauthorized alien, that employer will be prohibited from providing evidence in court that the person was legally authorized to work in this country?”
A No. A defendant may present any evidence that is permitted by court rules.
Q “If I have information that an employer has knowingly hired an illegal alien but I know I will be fired if my employer finds out I told you this, may I report this information anonymously?”
A Yes. This office will accept anonymous complaints and take appropriate action in response to such complaints. If a person sends an anonymous complaint that does not contain useful information about an alleged violation, the employer will not be investigated further. However, if credible and actionable information that an employer has violated the law is provided, it will not be ignored simply because it is anonymous. This is the nearly universal practice of law enforcement in dealing with anonymously-shared information, as is shown by such programs as Silent Witness, which encourage people to share information about wrongdoing confidentially.
Q “If I purchase a business, and that business has employees that remain employed after I purchased the business, are these employees considered new hires that have to be run through E-Verify?”
A If a person is an employee of business that is purchased, and remains an employee during and after the purchase, that person is not a new hire under the Legal Arizona Workers Act and is not required by that law to be run through E-Verify. As with any situation, you should look to your E-Verify memorandum of understanding with the Department of Homeland Security to see whether you have obligations under your agreement or federal law. Also, the provisions of the Legal Arizona Workers Act that prohibit a person from knowingly or intentionally employing an unauthorized alien apply to all employees hired on or after January 1, 2008.