Many employers are breathing a sigh of relief in Hazleton and perhaps in localities all across the country. On September 9, 2010, the U.S. Court of Appeals for the 3rd Circuit affirmed the lower court's decision that Hazleton's "Illegal Immigration Relief Act Ordinance" was unconstitutional. Hazelton, a small town in Luzerne County, Pa., saw an influx of Latino residents in recent years. Triggered by a murder of a Hazleton native, allegedly by Latino illegal immigrants, the town sought to legislate immigration law within its borders. According to the ordinance, employers and landlords would face severe penalties for engaging, hiring, or renting to an illegal immigrant. Many residents, including the Lozano plaintiffs, saw the ordinance as an overly zealous attempt to weed "illegals" out. The city of Hazleton and others defended the ordinance, in light of the federal government's alleged failure to deal with the millions of unlawful aliens in the country. In 2007, Judge Munley of the Middle District of Pennsylvania found for the plaintiffs; the judge held that the ordinance's reach, scope, and effects were unlawful themselves. The 3rd Circuit affirmed this decision, and the ordinance now remains permanently enjoined.
Hazleton's Attempts to Curb Unlawful Employment
The employment section of the ordinance placed burdens on Hazleton employers over and above current federal laws. For example, the ordinance imposed sanctions for employers who requested work from, let alone hired, an unauthorized worker; federal law has no similar prohibition against merely requesting work from someone who turns out to be unauthorized. Moreover, the ordinance provided only a circular definition of unauthorized worker as "any person who does not have the legal right or authorization to work due to an impediment in any provision of federal, state or local law ...." Without the benefit of the I-9 safe harbor under federal law, employers who failed to exclude unauthorized workers would be subject to public monitoring, revocation of licenses, and other penalties. On the flipside, if the employer terminated an employee who was in fact lawful, the ordinance created a private right of action against that employer by the terminated employee. The 3rd Circuit held that such requirements imposed by the city of Hazleton were preempted by existing federal law.
Current Law Governing Authorized Employment Found in Federal Statute
Currently, the Immigration and National Act (INA) is the federal law that governs employers' hiring responsibilities in all states. The law holds that employers must hire and retain only those who are legally allowed to work in the United States. The method by which employers determine legal work status is through the I-9 form. Within three days of the first day of work, employers and the new employee must fill out the I-9 form, available at www.uscis.gov under "Forms." The new hire must present documents to the employer to prove identity and work authorization; any documents listed on the I-9 form that appear legitimate on its face are to be accepted by the employer. Completed, signed, and properly stored I-9 forms can protect employers from liability for employees ultimately found by the government to be unauthorized.
Future of Patchwork Immigration Laws?
As local and state anti-illegal immigration proliferated across the country, a patchwork of immigration laws began to mark the nation. But as decisions like Lozano v. Hazleton in the 3rd Circuit come down, localities may now be thwarted from legislating their own variations of immigration law. Nevertheless, as Congress continues to delay in providing us with comprehensive immigration reform, localities like Hazleton may continue its push to control immigration within its own borders.
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