If you're taking the 3:10 to Yuma...

ARIZONA EMPLOYER SANCTIONS LAW

The Arizona Employer Sanctions Law or Legal Arizona Workers Act (LAWA) requires employers to use the E-Verify program, and suspends or revokes the business licenses of employers who knowingly hire illegal immigrants. A recent Arizona proposition, aimed at overhauling the law (Proposition 202) did not pass in the November election.

COUNSEL TO MANAGEMENT:

With Proposition 202 failing, Arizona can require employers to use the E-Verify program, and suspend or revoke the business licenses of employers who knowingly hire illegal immigrants.

There are many concerns over the accuracy of E-Verify. E-Verify relies mainly on the Social Security database, which the “Government Accountability Office”, has found to be laden with errors.

Management required to use E-Verify must make sure they are using it properly. Among other things:

• Management should:

o Comply with the E-Verify manual supplied by DHS;

o Ensure their representatives take the E-Verify tutorial before

   attempting to file an E-Verify case;

o Comply with I-9 rules;

o Follow the rules with respect to dealing with tentative

   non-confirmations; and

o Not use E-Verify to engage in pre-employment screening or any

   other illegal action.

o Remind those who receive tentative non-confirmation that they

   have the ability to contest that tentative non-confirmation;

o Print out instructions on how to seek correction with

   Social Security Administration;

o Provide the letter to the employee with instructions that the

   matter must be resolved within eight federal government work days; and

o Be on the lookout for legislation banning the use of E-Verify.

Above all, Management in Arizona must:

• Use E-Verify and verify the employment eligibility of all new applicants for employment without regard to country of birth; 
• Refrain from hiring or continuing to employ workers who the employer knows or should know lack employment authorization in the United States; and 
• Refrain from discriminating against, or impairing the wages and working conditions of, protected employees.

Failure to do so could cost you your business license in Arizona.

NINTH CIRCUIT HOLDS NON-RESIDENT EMPLOYEES

ARE COVERED BY CALIFORNIA WAGE LAWS

In November, the Ninth Circuit issued a decision in Sullivan v. Oracle Corp., holding that California’s Labor Code applies to work performed in California by non-residents of California. In Sullivan, Plaintiffs were instructors who traveled the states to train customers on Oracle software. Plaintiffs spent between 5 and 35 days in California each year. The Ninth Circuit held that California wage and hour law, including its daily overtime requirement, applied to days in which the plaintiffs worked in California.

COUNSEL TO MANAGEMENT:

During this time of year, many agricultural companies shuttle workers between Arizona and California. Management must be careful of this practice. The California Labor Code, including wage and hour law, applies to work performed in California by non-residents of California, which means if Arizona residents are doing work in California, even for just a day, then the California Labor Code applies to them for that day.

The goal of this article is to provide employers with current labor and employment law information. The contents should not be interpreted or construed as legal advice or opinion. For individual responses to questions or concerns regarding any given situation, the reader should consult with The Saqui Law Group at (831) 443-7100 in Salinas.