In Chamber of Commerce v. Whiting, the United States Supreme Court rejected on a 5-to-3 vote an attempt to overturn a controversial Arizona law that effectively requires Arizona employers to utilize the federal E-Verify program. The case is likely to have little short-term effect in California. In one of the few instances where the Democratic dominance in the California legislature actually helps business, it is difficult to foresee a scenario where California will pass a law similar to the Arizona law. However, the case is likely to have a significant impact on the political debate about immigration enforcement and reform. On June 15, 2011, Representative Lamar Smith (R-Texas) introduced the Legal Workforce Act (H.R. 2164), which will make the E-Verify employment verification system mandatory for all employers within 36 months. This follows the May 26, 2011 reintroduction of the Secure America Through Verification and Enforcement (SAVE) Act (H.R. 2000). If it passes, the bill will require all employers in the United States to use E-Verify following a four-year phase-in pe-riod. The Court’s endorsement of mandatory E-Verify will give political momentum to these bills.

But E-Verify does not solve the immigration problem. A 2006 raid at Swift Foods Co. led to the arrest of over 1,200 undocumented workers, despite the fact that the company had long participated in E-Verify. In 2008, immigration authorities at Mississippi’s Howard Industries arrested 595 undocumented workers, again despite the fact that the company was partici-pating in E-Verify. In both cases, through identity theft workers were able to get past E-Verify by presenting documents that were legitimate but did not belong to them. Of great concern to the agricultural industry is the refusal to recognize the challenges that face American farmers. The belief that employers should just “obey the law” ignores the difficulty that agricultural employers, particularly dairymen, have in securing legal workers. The fact is that the only pool of workers available to California dairies is one that has a large percentage of undocumented immigrants. With high quality forged identification readily available, it is almost inevitable that farmers will hire some number of undocumented workers. Some believe that low pay is the issue, but even if this were true, dairies do not control the price that they receive for their product. Dairy producers cannot simply raise wages to attract reluctant legal workers without putting themselves in the red. Unfortunately, those leading the debate in Congress appear to be unwilling to address the challenges that face America’s agricultural employers.

In this environment, farmers must be careful to obey the law. It is not unlawful to hire an undocumented worker; it is unlawful to hire an undocumented worker if the farmer knows or should know that the person lacks legal status. Properly completed I-9 forms provide employers with a defense to charges of immigration violations. Employers who diligently and correctly complete the I-9 process have as a defense that that the worker appear to be undocumented. The Obama administration has made worksite audits and enforcement a priority, and agriculture is a targeted industry. A critical step in hiring is to complete the I-9 process for every newly-hired employee to ensure legal compliance and to protect the dairy from both civil and criminal liability.

The goal of this article is to provide employers with current labor and employment law information in a general way. Individual circumstances vary widely, and consultation with a lawyer is the only way to make sure legal requirements are being met in a given instance. The contents should not be interpreted or construed as legal advice or opinion. The views expressed are those of the author only. For individual responses to questions or concerns regarding any given situation, the reader should consult with Anthony Raimondo at McCormick Barstow LLP in Fresno, at (559)433-1300.