Judge's Impending Ruling on New Alabama Immigration Law Unlikely to Affect Employer Obligations

On August 24, United States District Judge Sharon Blackburn heard several hours of oral argument in three federal lawsuits challenging the constitutionality of the new Alabama Immigration Act. Most of the provisions of the new Act, which has been described by both supporters and opponents as the toughest state immigration law in the country, were set to go into effect September 1. However, on August 29, Judge Blackburn entered an Order temporarily enjoining enforcement of the new Act to give herself additional time to address the numerous challenges asserted in the three lawsuits. In her Order, Judge Blackburn made clear that she was not addressing the merits of the parties' positions and stated that she would issue rulings on the merits by no later than September 28. We summarized the new Act in a previous Labor & Employment Alert.

Most observers predict that many of the most onerous and controversial provisions of the new law will be declared invalid. Employers, however, should note that the provisions of the Act which impact them the most are not being directly challenged in any of the three lawsuits. This includes Section 15 of the Act (which requires all Alabama employers to use E-Verify and imposes stiff penalties – specifically, the suspension and loss of business licenses – on employers who are found to have knowingly hired or employed unauthorized aliens) as well as Section 9 (which requires contractors and subcontractors to use E-Verify and to provide sworn affidavits attesting to immigration compliance as a condition for the award of a contract with the State of Alabama, a political subdivision of the State, or a State-funded entity). These employment-related provisions are not being challenged because of the U. S. Supreme Court's May 2011 decision in Chamber of Commerce of the United States of America v. Whiting, which upheld the constitutionality of similar legislation enacted by the State of Arizona.

Fortunately for employers, neither Section 9 nor Section 15 was set to go into effect on September 1, as was most of the remainder of the Alabama Act. Under the Act, the effective date of Section 9, which applies to state contractors and subcontractors, is January 1, 2012. The effective date of the wider-ranging Section 15 is not until April 1, 2012. However, because these provisions will almost certainly survive regardless of how Judge Blackburn rules on the remainder the Alabama Act, Alabama employers would be well-advised to...