On May 26, the U.S. Supreme Court voted 5-3 that states have the right to enforce mandatory E-Verify statutes tied to the issuance of state business licenses. The case was Chamber of Commerce of the United States of America v. Whiting. The decision concludes a four-year battle over an Arizona law, called the “Legal Arizona Workers Act.” It will likely inspire more states to enact similar mandates that employers participate in E-Verify.
The Chamber of Commerce argued that a state law that imposes penalties on employers for immigration-related activities conflicts and is preempted by federal law. SHRM also filed an amicus brief in support of the Chamber’s claim. However, the Supreme Court disagreed, affirming a narrow right of states to compel employers to use the federal E-Verify system as a condition of doing business in the state of Arizona.
E-Verify is an Internet-based employment verification system administered by the U.S. Department of Homeland Security (DHS). It allows employers to verify the name and identification number (Social Security and/or work authorization number0 of a newly-hired employee. Ironically, the chief administrator of the system for the Obama administration, which supported the Chamber’s challenge, is DHS Secretary Janet Napolitano, the former Arizona governor who signed her state’s legislation into law in 2007.
In the States
While the E-Verify system remains voluntary for most employers, certain federal contractors are required to participate, based on an executive order issued by then-President George W. Bush. In addition, state laws mandate participation by all employers in Mississippi, South Carolina, Utah and Georgia, as well as Arizona. And, several states require certain state contractors or state agencies to use the system.
To see what states currently require participation in E-Verify, please go HERE to access the website of the National Conference of State Legislatures (NCSL). SHRM is a NCSL Foundation member.