I am a member of the Payson business community and I am a member of a group requesting a petition for a referendum on the town's recent immigration ordinance.
I don't oppose the intent of this ordinance, but I do oppose the fact that it places me in a position where compliance will force me to violate federal law. I already take every precaution allowed by federal law to ensure that I never mistakenly hire an illegal worker. I try very hard never to hire workers with counterfeit documentation, but federal anti-discrimination laws restrict the questions I'm allowed to ask and the documentation I can legally require.
I have been in complete compliance with the Immigration Reform & Control act (ICRA) of 1986 for the past 20 years and I continue to completely conform today.
For several reasons, I believe the well-informed public will not vote this ordinance into law, once its implications are understood.
The ordinance is contrary to federal law. In order to get a business license, the ordinance requires that I, as an employer, sign an affidavit in which I swear to two things:
1. I have reviewed all of my employee records.
2. None of my employees are working illegally.
The problem with this ordinance is that it demands that the employer swear to a fact. If that fact proves not to be true, by signing the affidavit, I am guilty of perjury.
You will notice that the ordinance is vague as to what documents I must review. However, it is not vague as to my penalty. I am criminally charged if the fact for which I am required to swear (that I have no employees working for me illegally) proves to be false. I will be guilty of perjury even if I did everything I could in my due diligence to verify, when reviewing the records, that my employees are all legal. In essence, if my employees have false documentation, I am guilty of perjury, even if I was deceived by very convincing documentation.
If I try to comply with Payson's town ordinance, I run counter to the instruction I receive directly from the Department of Homeland Security in its employee eligibility verification I-9 form. At the top of that form, in bold block letters it reads, "Anti-Discrimination Notice." It explains that it is illegal for me to discriminate against an individual in hiring or discharging, based upon that individual's national origin or even citizenship status. It further explains that I cannot specify which documents I will accept from the employee. This is important.
When we fill out I-9 forms, we are required to review employee documentation. The applicant must show us one document from List A, or one document from List B and one document from List C on the I-9 instructions. List B documents can be any of the following: A driver's license from any of the 50 states, a school ID with photograph, a voter registration card, a Native American tribal document, a Canadian driver's license, a school report card, a clinic, doctor or hospital record or a nursery school record. It is impossible for me to become a documents expert for this variety of documentation.
List C can be a Social Security card, a certificate of birth abroad, a certificate of birth from any of the 50 states or a Native American tribal document. In essence, under the rules adopted by Homeland Security, I am not allowed to specify which of these documents my prospective employees produce. If they come forward with a day care or nursery school record and a birth certificate from Texas, I am not allowed, under federal law, to demand additional documentation or different forms. However, the Town of Payson has now subjected me to both criminal liability and the likelihood of losing my business license if I accept this documentation (as required by federal law) and one of my employees proves later to be an undocumented worker.
This ordinance needs additional thought.
I suspect the town council is not particularly concerned if a contractor is closed down for a few weeks because one of the members of his framing crew, with false identification, obtained a job. However, this ordinance applies to every business. How are the citizens of Payson going to feel if Wal-Mart is closed for three weeks because one of its maintenance workers landed an entry-level position with false documentation? Further, how keen will Wal-Mart, Home Depot, Safeway and Bashas' be about maintaining a presence in Payson when the town is criminally prosecuting their store managers for filing the required affidavit based upon a false ID?
I expect the council will respond, that all of this can be avoided if the employers simply reviewed documents more diligently to ensure that we do not hire undocumented workers. The problem with that theory is that it would demand that we obtain more documentation than allowed by the I-9 form. If we demand more documents, we run the risk of a discrimination lawsuit. If the large chains like Wal-Mart demand more documents, they run the risk of class action discrimination lawsuits.
If this ordinance is truly about illegal workers, then the ordinance should not ignore one of the largest employers in Payson. That employer is the Town of Payson. If the ordinance does go forward on July 1, 2007, it should go forward with an amendment, which applies equally to the Town as it does to the employers. The mayor must be required to sign an affidavit stating that he has reviewed the records of all the Town of Payson employees. His affidavit must further state that no Town of Payson employees are working here illegally, the same requirement of any employer under the ordinance. If the mayor's affidavit later proves to be false and we find that someone who is not here legally has a job with the Town, then the mayor would be subject to the same criminal prosecution as any business owner. Perhaps each council member could sign the same affidavit.
These are just some of the issues that should be reviewed by the citizens of Payson in a referendum on this ordinance.