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Testimony: Regarding Bill to Require Companies To Certify Compliance With Federal Law With Respect To Hiring Of Employees

Testimony Of Udi Ofer On Behalf Of The New York Civil Liberties Union before The Suffolk County Legislature Regarding Introductory Resolution 2025, A Local Law To Require Companies To Certify Compliance With Federal Law With Respect To Hiring Of Employees

My name is Udi Ofer. I am Legislative Counsel at the New York Civil Liberties Union (“NYCLU”). Since 1951, the NYCLU has been the state’s leading advocate on behalf of New Yorkers’ civil rights and civil liberties. We are a non-partisan organization with six chapters, including one in Suffolk County, and 48,000 members statewide.

I testify today in strong opposition to Introductory Resolution No. 2025. The proposed legislation represents an attempt by local government to add to preexisting federal requirements on employers to verify the work eligibility and immigration status of their employees. The legislation also seeks to impose additional civil fines and criminal sanctions on those employers who fail to comply with employment verification requirements. Contrary to the bill’s title, the proposed legislation represents more than just a requirement on employers to “certify compliance with federal law.” Rather, the proposed legislation is in effect an attempt by local government to change federal law that already prohibits and sanctions employers who hire undocumented immigrants.

The proposed Suffolk County legislation is riddled with constitutional flaws and anti-immigrant sentiments, and blatantly ignores the supremacy of federal law in the area of immigration regulation. As my testimony below will make clear, federal law expressly preempts the proposed Suffolk County legislation. Moreover, if passed, the proposal would lead to discrimination against anyone who looks or sounds “foreign,” regardless of their actual citizenship status. Employers will fear retribution for hiring undocumented workers and discriminate against United States citizens and other individuals with the right to work in Suffolk County, all in violation of federal civil rights protections.

The comprehensive federal regime over immigration law that is currently in place represents a careful balance between the nation’s interest to regulate immigration and respect for individual rights and freedoms. Suffolk County should not pass its own set of immigration rules that will interfere with this carefully drawn balance. Such intrusion by the County would only lead to a chaotic legal system where employer penalties will vary from community to community. The interest in uniformity and fairness of application is precisely why the courts have long held that immigration law is under the exclusive province of the federal government.

Introductory Resolution 2025 comes amid a passionate national debate over several proposals currently before Congress to reform the federal immigration law system. Suffolk County residents should participate in this important debate by engaging in public conversations and protests and by lobbying their elected officials in Congress. However, the Suffolk County Legislature should not, and cannot, attempt to enter this debate by passing legislation that is clearly beyond its constitutional mandate. While Suffolk lawmakers may have reasonable grievances over the federal government’s handling of employer sanctions, it is not the place of local government to assume the responsibilities of the federal government. Suffolk County should not become the untrained and unfunded enforcement arm of the federal immigration system.

The proposed Suffolk legislation is preempted by Federal immigration law

The United States Constitution and the laws passed by Congress are the supreme law of the land. The Supremacy Clause of the United States Constitution states:

This Constitution, and the Laws of the United States which shall be made in Pursuance therefore; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution of Laws of any State to the Contrary notwithstanding.

The United States Constitution grants the federal government the exclusive authority to “establish a uniform rule of Naturalization.” Accordingly, the Supreme Court has long held that under the United States Constitution, the “[p]ower to regulate immigration is unquestionably exclusively a federal power.”

The Supreme Court has established three tests to determine when federal law preempts local statute, in recognition that not every local ordinance, even legislation that impacts immigrants, is automatically preempted by federal law. If the local statute fails any one of the following three tests, it is blocked by federal law: (1) Congress intended to occupy that particular field; (2) Congress included in its legislation an express statement of preemption; or (3) local law conflicts with federal law, making it impossible to comply with both.

The proposed Suffolk County legislation fails the above tests laid out by the Supreme Court, and thus is preempted by federal law. First, pursuant to its exclusive authority over immigration regulation, the federal government has established a comprehensive system of laws, regulations, procedures, and administrative agencies that determine whether and under what conditions individuals may enter, stay in, or work in the United States. As part of this system, the Immigration Reform and Control Act of 1986 (“IRCA”) amended the Immigration and Nationality Act (“INA”) to prohibit the hiring and continued employment of undocumented immigrants. The Immigration Reform and Control Act created a three part process on employers to verify the immigration status of their employees: (1) employees must state under penalty of perjury that they are authorized to work in the United States; (2) employers must verify this information pursuant to regulations set out by federal immigration authorities; and (3) employers must obtain certain documents from employees evidencing their identity and authority to work in the United States. Moreover, IRCA includes criminal and civil sanctions against employers who fail to comply with the above federal scheme, and who employ undocumented immigrants.

The proposed Suffolk County legislation is an attempt by local government to amend preexisting federal laws and regulations that already impose employer sanctions on those who knowingly hire undocumented immigrants or fail to comply with employment eligibility verification requirements. The federal government has already placed requirements on employers to verify the work eligibility of their employees. Suffolk County simply does not have the authority under our constitutional system to act in this arena already occupied by the federal government.

Second, when Congress passed the Immigration Reform and Control Act, it included a clause expressly preempting local and state laws from placing additional civil fines or criminal sanctions on employers who hire undocumented immigrants. The congressional intent behind the preemption clause makes it clear that the few narrow exceptions in the clause do not come close to the gaping holes that Suffolk County is attempting to create in its proposed legislation. Despite clear congressional language and intent stating otherwise, the proposed Suffolk County legislation imposes additional civil fines and criminal penalties, all in direct contravention of federal law.

Third, numerous provisions in the proposed County legislation conflict directly with existing federal laws and regulations. There are too many provisions to name them all. For example, the proposed Suffolk County legislation creates categories of documents to prove employment authorization and an individual’s identity that are in conflict with federal law, penalizing military personnel who under federal law may use a United States Military Card to establish their identity and Native Americans who will not be informed of their right to use tribal documents in order to establish employment eligibility; actually reduces the number of documents needed to verify employment eligibility, in violation of established federal law; conflicts directly with federal rules on employment eligibility reverification and federal requirements surrounding record retention; places employers in jeopardy of violating federal immigration employment laws by requiring that employers engage in potential document abuse and require documents from their employees that are different from and in addition to the current federal requirements; and does not include the same privacy and due process protections afforded under federal law, and central to the employment verification scheme.

The proposed legislation violates the due process rights of employers

Introductory Resolution 2025 also violates the due process rights of employers because it will be nearly impossible for employers covered by this bill to ensure compliance with the proposed legislation. Suffolk County employers will be placed in the difficult position of having to comply with legislation that is so vague, overbroad and potentially far-reaching that a person of common intelligence would have to guess at its meaning and application.

For example, the proposed legislation’s definitions of “compensation” and “covered employer” and the requirements that it places on all covered employers may potentially reach tens of thousands of business owners who may not know whether they have to comply with the legislation. Large companies such as Wal-Mart or Starbucks who may receive tax incentives to do business in Suffolk County may be required to submit sworn affidavits on behalf of their employees, even if they receive a minimal amount of County money. Publicly owned companies doing business in Suffolk County and receiving tax incentives or economic development funding may be required to submit sworn affidavits on all of its company owners, even if the owner is an individual who simply owns stock in the company through their mutual fund.

Because the proposed legislation is so broad and vague, employers will have to guess at its meaning and whether they are impacted by the legislation. Employers will undoubtedly end up complying with the legislation in an inconsistent matter, subjecting some to serious civil and criminal penalties.

The proposed legislation raises serious concerns under Federal civil rights statutes

Title VII of the Civil Rights Act prohibits employers from discriminating on the basis of race, color, religion, sex, or national origin. Moreover, under 42 U.S.C. §1981 and the Civil Rights Act of 1870:

“All persons within the jurisdiction of the United State shall have the same right in every State and Territory to make and enforce contracts, to use, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, option, penalties, taxes, licenses, and exactions of every kind, and to no other.”

The Supreme Court has held that Section 1981 prohibits government discrimination based on citizenship status, and the Second Circuit has extended that protection against private actors as well.

Numerous organizations and individuals have already testified that should the proposed Suffolk County legislation pass, it will undoubtedly lead to a rise in discrimination against individuals who appear to be from certain countries, regardless of their citizenship status. Employers will become very reluctant to hire individuals from certain ethnic backgrounds, in fear of violation of this legislation. Such acts will be in direct contravention of Title VII and Section 1981. Suffolk County is placing local employers in a position where they will undoubtedly be subject to numerous civil rights lawsuits.

The short and hollow anti-discrimination clauses inserted by the County Legislature into the proposed legislation in the last minute will not protect employees from discrimination, or the County or Suffolk employers from discrimination lawsuits.

For the reasons stated above, the New York Civil Liberties strongly opposes Introductory Resolution 2025 and asks County legislators to vote against it.

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