The NAM is a member of the Human Resource Initiative for a Legal Workforce, which filed an amicus brief on 10/23/08 in the 10th Circuit in a case involving an Oklahoma law that requires every business that has a contract or subcontract with a public employer to use the federal Status Verification System to verify the employment authorization status of all new employees. The law also makes it illegal to fire a U.S. citizen or permanent resident alien while retaining in a similar job an employee who is an illegal alien. Employers using the federal system are exempt from liability, investigation or suit under this section; those who do not are at risk of litigation.
The problem is that Oklahoma is one of a growing number of states and municipalities that have passed or are considering such laws, but their enforcement schemes are different, making it increasingly difficult for an employer doing business in multiple states to navigate the conflicting requirements. The laws impose a wide variety of inconsistent verification requirements, squarely conflicting with the intent of Congress to create a nationally uniform and comprehensive federal system for regulating the employment of alien workers.
Our amicus brief enumerated the serious flaws that exist with the federal verification system, specifically the experimental Basic Pilot Program known as E-Verify. Studies have pointed out the errors in the system, including 17.8 million records that contain discrepancies related to name, date of birth or citizenship status. The GAO reported that the government is not equipped to manage a significant expansion of E-Verify users. Employers have complained of multiple problems and delays, prompting Illinois to prohibit employers from using it. Participation in the program is burdensome and costly.
On 2/2/2010, the court ruled that the lawsuit was likely to succeed on the merits regarding Sections 7(C) and 9 and that the trial court properly issued an injunction against enforcement of the law. The court also found that Section 7(B) of the law is not impliedly preempted by federal law. Section 7(C) prohibits discharging an employee who is a U.S. citizen while still employing employees who are unauthorized aliens, and Section 9 requires verification of employment authorization.. Section 7(B) applies to state government contractors.