Thursday, February 4, 2010

10th Circuit Says Provision in Oklahoma's Taxpayer and Citizen Protection Act Requiring Employee Eligibility Verification Is Not 'Expressly Pre-Empted' by Federal Law

"Court Rejects Bulk of Immigration Reform Law"

"The 10th Circuit on Tuesday largely upheld an order barring enforcement of Oklahoma's controversial immigration reform law, but ruled that a provision for verifying employees' work eligibility is now enforceable, as it's not 'expressly pre-empted' by federal law.

House Bill 1804 passed on an 84-14 vote in 2007 and was called 'perhaps the most meaningful' piece of immigration reform in the nation. Now dubbed the Oklahoma Taxpayer and Citizen Protection Act, the law requires employers to verify employees' work eligibility and bans businesses that employ illegal immigrants from firing workers who are U.S. citizens. Companies must also withhold taxes for workers who don't have proper documentation.

A group of local chambers of commerce and trade associations challenged those provisions as pre-empted by federal law. They won a preliminary injunction in district court, and the Denver-based appeals court upheld most of that injunction.

'The Chambers ... are unlikely to succeed on the merits of their claims that (two of the challenged provisions) are expressly pre-empted' by the federal Immigration Reform and Control Act, Judge Carlos Lucero wrote.

But the three-judge panel said pre-emption might be an issue with a provision requiring employers to use the Basic Work Pilot program - a government-run Internet database - to verify employees' citizenship status."

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