News & Information

 

FEATURED PRODUCT

Family and Medical Leave Act, Military Family Leave Final Regulations
Get important background information concerning the FMLA rule changes, along with succinct explanations of the new rules and how they have changed from prior regulations.

Learn More »

LABOR & EMPLOYMENT LAW — 2/06/08

Chamber of Commerce challenges constitutionality of Oklahoma's immigration law

In a lawsuit filed on February 1, 2008, the US Chamber of Commerce asked the US District Court for the Western District of Oklahoma to block certain employment-based provisions of Oklahoma's comprehensive Taxpayer and Citizen Protection Act of 2007 (H.B. 1804). In addition to the US Chamber, other plaintiffs include: the Oklahoma State Chamber of Commerce and Associated Industries, the Greater Oklahoma City Chamber of Commerce, Metropolitan Tulsa Chamber of Commerce, Inc, the Oklahoma Restaurant Association and the Oklahoma Hotel and Lodging Association (Chamber of Commerce of the USA v Henry, WDOkla, Case Number not yet available).

Provisions at issue. The plaintiffs, who filed suit against Governor Brad Henry (D), Attorney General Drew Edmondson (D) and members of the Oklahoma Human Rights and Tax Commission, take issue with three specific provisions of H.B. 1804. They are: (1) Section 7(B) of the Act, to be implemented on July 1, 2008, which requires employers who want contracts with the state, or with any other public entity in the state, to use an employment verification system to verify the eligibility of their new employees; (2) Section 7(C) of the Act, also to be implemented on July 1, 2008, which creates a new cause of action for employment discrimination against all Oklahoma employers that discharge a US citizen or legal permanent resident employee while retaining an undocumented worker hired in a comparable position, if the employer reasonably knows that the retained employee was undocumented (a "safe harbor" applies for employers who use a verification system); and (3) Section 9 of the Act, which was implemented on November 1, 2007, and which requires all Oklahoma businesses to verify the work authorization status of each individual independent contractor who contracts within the state in order to avoid tax penalties.

The various employment verification options include: (1) E-Verify, an Internet-based system operated by the Department of Homeland Security in partnership with the Social Security Administration (SSA) that allows participating employers to electronically verify the employment eligibility of their newly hired employees; (2) the Social Security Number Verification Service (SSNVS) or a similar online verification process implemented by the Social Security Administration (SSA), which allows employers to verify Social Security numbers online via the Internet; or (3) an independent, third-party system of equal reliability as the federal programs.

The plaintiffs contend that the challenged sections are preempted by the Immigration Reform and Control Act of 1986 and the Supremacy Clause of the US Constitution. In particular, they assert that the particular provisions "intrude[] on a field reserved exclusively to the federal government insofar as Oklahoma seeks to legislate employer verification of immigration status, an arena where the federal government, through numerous statutes and regulations, has exercised exclusive control." In fact, the plaintiffs note that "[fe]ederal evaluations of the [former] Basic Pilot Program have revealed that this database is incomplete and contain[] errors, and particularly undercount[] naturalized citizens and work-authorized non-citizens. It also does not correct adequately for Social Security numbers that have been erroneously entered, and for name changes." In addition, unlike E-Verify, the plaintiffs stated that the SSA's SSNVS is not even an "approved method of verifying immigration status or employment eligibility" as it is not intended to, and does not, provide any information about immigration status, and it is illegal for employers to use it for any purpose other than year-end wage reporting.

Comments. "Piecemeal efforts to regulate the employment of unauthorized workers are unconstitutional and preempted by federal law," said Robin Conrad, executive vice president of the National Chamber Litigation Center, the Chamber's public policy law firm.

"Oklahoma's immigration law is one of several--including the ordinance struck down in Hazleton, Pennsylvania--that we have challenged," Conrad said. (A federal court in Pennsylvania ruled last July that similar state and local regulation of unauthorized workers interferes with Congressional objectives and is unconstitutional.) "The Constitution plainly prohibits state and local governments from undermining well-established federal law regulating the employment of immigrants in the United States."

"Immigration is a national issue," Conrad said. "What is happening across the country in states like Oklahoma and Arizona shows that piecemeal immigration laws are not the answer, and that Congress needs to enact comprehensive federal immigration reform."

Different from prior lawsuit. Unlike a prior lawsuit filed by a District of Columbia-based coalition of Latino clergy & Christian leaders (CONLAMIC), the US Chamber and other business group plaintiffs narrowed their focus to just three employment-based provisions of H.B 1804, rather than the entire Act. In the prior case, citing a lack of standing, US District Court Judge James Payne of the Northern District of Oklahoma on December 28, 2007, denied CONLAMIC's motion to reconsider his order dismissing the coalition's lawsuit challenging H.B 1804 so, the provisions began taking effect November 1, 2007. Other plaintiffs in that suit included two churches, a Mexican restaurant and several unnamed immigrants (National Coalition of Latino Clergy, Inc v Henry, NDOkla, No 07-CV-613-JHP). Among H.B. 1804's other employment provisions, employers may be guilty of a felony if they transport, conceal, harbor or shelter an employee of their illegal presence if they know, or are in reckless disregard of, the fact that the employee knowing or in reckless disregard of the fact that the alien has come to, entered, or remained in the United States in violation of law, in furtherance of their illegal presence in the United States. A violation of this section is considered a felony, which subjects employers to imprisonment of not less than one year in jail, a $1,000 fine, or both.

In the US Chamber and other business group plaintiffs' suit they contended that they have standing by virtue of the fact that their members have businesses that "by virtue of employing individuals in the State of Oklahoma, contracting with individual independent contractors, and/or having or expecting to have contracts with public entities for the performance of services in the State, are subject to Sections 7 and 9 of the Act. These provisions could lead to debarment from State contracts, obligatory withholding of taxes from contractors or tax penalties, and liability for having unknowingly employed an unauthorized worker."

For more information on this and other topics, consult CCH Employment Practices Guide or CCH Labor Relations.

Visit our News Library to read more news stories.