Parts of Alabama Immigration Law Blocked — At Least Temporarily

Alabama employers may see some relief in a federal judge’s opinion on the state’s tough new immigration law even though most of the law was allowed to stand.

Chief U.S. District Judge Sharon Lovelace Blackburn ruled on September 28 that key parts of House Bill 56, which was signed into law June 9, can take effect. But she blocked enforcement of Sections 11(a), 13, 16, and 17.

Section 11(a) “makes it a misdemeanor crime for an unauthorized alien to apply for, solicit, or perform work,” according to the text of the memorandum opinion from the court.

Section 13 “makes it unlawful for a person to 1) conceal, harbor or shield an alien unlawfully present in the United States, or attempt or conspire to do so; 2) encourage an unlawful alien to come to the State of Alabama; or 3) to transport (or attempt or conspire to transport) an unlawful alien.”

Section 16 “forbids employers from claiming as business tax deductions any wages paid to an unauthorized alien.”

Section 17 “establishes a civil cause of action against an employer who fails to hire or discharges a U.S. citizen or an alien who is authorized to work while hiring, or retaining, an unauthorized alien.”

The ruling was in response to legal challenges posed by the Obama administration and immigrant support groups. The September 28 ruling is expected to be appealed.

The complaint didn’t challenge provisions in the law requiring use of the federal government’s E-Verify system for checking the legal status of employees. So those provisions are still in force. Under the law, state contractors must use E-Verify beginning January 1, 2012. All other employers with operations in Alabama must use the system by April 1, 2012. (For more information on the E-Verify provisions of the law, see the July issue of Alabama Employment Law Letter.)

Even though the ruling struck down certain provisions, Alabama Governor Robert Bentley hailed the law in a statement released after the ruling: “The court agreed with us on a majority of the provisions that were challenged. During my campaign, I promised a tough law against illegal immigration, and we now have one. The law that the Alabama Legislature passed and I signed is constitutional.”

Bentley went on to say that he is “optimistic that this law will be completely upheld, and I remain committed to seeing this law fully implemented.”

Alabama’s law is seen as perhaps the toughest state immigration law in the country. Among its terms are provisions that require schools to check immigration status of new students and measures that expand authorities’ ability to request immigration papers and detain those suspected of being in the country illegally.

Even before the ruling upholding much of the law, agricultural employers were seeing a shortage of labor. John McMillan, the state agriculture commissioner, released a statement after the ruling calling for state government to help agricultural employers understand the new law.

“Judge Blackburn’s ruling essentially leaves intact the law as it applies to agriculture and agribusiness in Alabama,” McMillan said. “It is time for state government to work with farmers and agribusinesses to first understand this new law and all of its ramifications. Next, we also must work to solve the severe labor shortage on our farms and in agribusiness facilities, now that many of the Latino workers have left Alabama.”

The July 2011 issue of Alabama Employment Law Letter, written and edited by Al Vreeland of Lehr, Middlebrooks & Vreeland, P.C., in Birmingham, provides a lengthy, detailed analysis of the new immigration law. The newsletter will closely follow this and any other legal developments.