Arizona Stop Illegal Hiring, Proposition 202 (2008)

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Arizona Proposition 202, known by its supporters as the Arizona Stop Illegal Hiring Act, was on the November ballot in Arizona as a citizen-initiated state statute. It was defeated.

The measure, which was sponsored by former Assistant U.S. Attorney Andrew Pacheco, mandates that citizen complaints against businesses be signed and dated instead of being anonymous. The petition would have also punished those that use fraudulent or stolen identification, targeting the cash labor market.[1] The group has been associated with Wake Up, Arizona! a business coalition that vowed to redefine the current law.

Election results

Arizona Stop Illegal Hiring
ResultVotesPercentage
Defeatedd No1,276,68159.2%
Yes 881,576 40.8%

Results according to the Arizona Secretary of State.[2]

Text of measure

Short title

The official short title for Proposition 202 was:

"Stop Illegal Hiring" Act is an initiative designed to crack down on unethical businesses who hire illegal immigrants. This initiative targets employers who hire workers and pay under-the-table in cash, which fuels illegal immigration in Arizona. It revokes the business license of employers who knowingly or intentionally hire illegal immigrants. This initiative increases penalties for identity theft, as illegal immigrants often use stolen identities to conceal their undocumented status. Fines collected as a result of this initiative will be distributed to schools and hospitals to help deal with the financial burden placed on Arizona because of illegal immigration.[3][4]

Full text

The full text of the legislation proposed by Proposition 202 is available here.


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Specific provisions of Prop. 202

Proposition 202 would change current Arizona law that prohibits employers from intentionally or knowingly employing an alien who is not authorized under federal law to work in the United States. Under Proposition 202, the definition of "knowingly employ an unauthorized alien" would be changed to require actual knowledge by an owner or officer of the employer.

Proposition 202 would provide that a state, county or local official, in attempting to verify with the federal government if a person is authorized to work in the United States, is to rely solely upon the processes and procedures set forth in federal law.

Proposition 202 would allow any person to file a written and signed complaint with the attorney general or county attorney that an employer in this state was either intentionally or knowingly employing an unauthorized alien in this state. If a person files a false or frivolous complaint, the person would be guilty of a class 3 misdemeanor. If the complaint is found to be valid, the appropriate federal and local officials would be notified by the attorney general or the county attorney. The county attorney would be authorized to bring an action against an employer only for violations that occur beginning January 1, 2009.

Proposition 202 would mandate courts to impose certain penalties for the first violation in a three-year period:

  • Confirm that the employer has terminated or will terminate the employment of all unauthorized aliens in this state.
  • Order the employer to be subject to a three-year probationary period and file quarterly reports with the county attorney of each new employee hired at the location where the unauthorized alien performed work.
  • Order the employer to sign an affidavit stating that the employer has terminated the employment of all unauthorized aliens in this state and that the employer will not knowingly or intentionally employ any unauthorized aliens in this state. If the affidavit is not signed, all licenses held by the employer that are necessary for the employer to operate the employer's business at the business location where the unauthorized alien performed work would be suspended until the affidavit is signed. If there are no licenses held by the employer specific to that business location, the court would be required to order the suspension of all licenses held by the employer at the employer's primary place of business in this state. The court would be authorized to order that the business licenses of the employer be suspended for no more than ten days if certain factors are present.

Proposition 202 would mandate courts to impose certain penalties for the first intentional violation in a five-year period: For a first intentional violation in a five-year period, the court shall:

  • Confirm that the employer has terminated or will terminate the employment of all unauthorized aliens in this state.
  • Order the employer to be subject to a five-year probationary period and file quarterly reports with the county attorney of each new employee hired at the location where the unauthorized alien performed work.
  • Order the employer to sign an affidavit stating that the employer has terminated the employment of all unauthorized aliens in this state and that the employer will not knowingly or intentionally employ any unauthorized aliens in this state. If the affidavit is not signed, all licenses held by the employer that are necessary for the employer to operate the employer's business at the business location where the unauthorized alien performed work would be suspended until the affidavit is signed. If there are no licenses held by the employer specific to that business location, the court would be required to order the suspension of all licenses held by the employer at the employer's primary place of business in this state.
  • Order the appropriate agencies to suspend all of the employer's business licenses as described above for a minimum of 10 days.

For a second intentional violation during a probationary period, Proposition 202 requires the court to:

  • Order the permanent revocation of all licenses held by the employer that are necessary for the employer to operate the employer's business at the business location where the unauthorized alien performed work.
  • If there are no licenses held by the employer specific to that business location, the court would be required to order the permanent revocation of all licenses held by the employer at the employer's primary place of business in this state.

Beginning January 1, 2009, Proposition 202 would require every employer, after hiring an employee, to verify the employment eligibility of the employee through the federal employment electronic verification (E-Verify) program or through other documentation procedures authorized by federal law.

Proposition 202 would authorize the attorney general to bring an action against an employer if the employer has more than four employees, pays hourly wages or salary in cash and fails to do any of the following:

  • Withhold required taxes from the employee's compensation.
  • Report the hiring of an employee to the state.
  • Make the required contributions for unemployment compensation benefits.
  • Provide employees coverage for workers compensation.

If the employer is found guilty of any of these actions, the court would be required to enter a judgment against the employer for triple the amount of money that the employer failed to pay or $5,000 per employee for which a violation was committed, whichever is greater. All sums paid by the employer would be remitted to the Arizona department of education and the Arizona department of health services for distribution to school districts and emergency room providers to use to offset the costs of illegal immigration.

Proposition 202 would expand the crime of identity theft to include a person who knowingly takes or uses personal identifying information of another person or entity without the consent of that other person or entity with the intent to obtain or continue employment. The crime of identity theft would also be expanded to include a person who knowingly accepts any personal identifying information of another person from an individual knowing that they are not the identified person and uses the information for work authorization under federal law. Identity theft is a class 4 felony.

Proposition 202 would expand the crime of aggravated identity theft to include the theft of two or more identities or an identity theft that causes at least $1,000 in economic loss. Aggravated identity theft is a class 3 felony.

Proposition 202 would expand the crime of trafficking in the identity of another person or entity to include a person who sells personal identifying information of another person or entity with the intent of allowing another person to obtain or continue employment. Trafficking is a class 2 felony.

Fiscal impact statement

Arizona law requires the Joint Legislative Budget Committee (JLBC) Staff to prepare a summary of the estimated fiscal impact of statewide ballot propositions. The JLBC's fiscal impact statement about Proposition 202 says:

  • The State may receive revenues in the form of fines from violators of the provisions of Proposition 202.
  • The Attorney General and county attorney offices will have responsibility to enforce these provisions.
  • The fines generated by non-compliant cash-paying employers will be equally distributed to the Department of Education and the Department of Health Services for distribution to school districts and emergency room providers to offset costs of the effects of illegal immigration.
  • The total amount of fines will depend on the level of employer compliance, which is difficult to predict in advance.

Supporters

The organization supporting Proposition 202 is Stop Illegal Hiring, whose chairman is Andrew Pacheco.

Supporting Arguments

  • Prop. 202 makes it harder for employers to cut corners by creating a mechanism for law enforcement to target the underground, black market, all-cash economy.
  • Would make it a crime for an employer to accept false identification from a potential employee.
  • Creates a two strike penalty that ensures employers are out of business if they are found guilty of hiring illegal aliens.

Other groups supporting the measure include The Arizona Farm Bureau and WESTMARC.[5]

Opponents

Tim Rafferty and Richard Martin of RidersUSA argue against 202 saying,

"If previous ballot measures are indicators, the majority of Arizonans believe that the state needs to "Stop Illegal Hiring." If truth in packaging were applicable here, this legislation would be called "Employer Amnesty." This legislation removes two key provisions of the existing Employer Sanction's Law strong provisions which had the agreement of the legislature and Governor. The first essential element that is removed is the mandate that all businesses use the highly effective, user-friendly federal E-Verify system. E-Verify assures that only legal workers can gain employment in Arizona and has a provision for correcting errors. "Stop Illegal Hiring" offers the less-stringent federal guidelines presently in force as a substitute for E-Verify and relies on documents that have been easily forged and have been found counterfeited on Phoenix streets. Hiring illegal workers takes jobs away from legal workers, lowers the prevailing wages, and flies in the face of law and order. Vote NO on PROP 202."[6][7]

Opposing Arguments

  • Prop. 202 requires Arizona to wait until the Federal Government has taken action against an employer before the state takes action.
  • The measure exempts thousands of Arizona employers by offering the use of the same standards that have not worked in the past.
  • Eliminates the Silent Witness portion of the law and insists that all complaints regarding employer violations of the law must be written and signed

Public Opinion Polls

See also Polls, 2008 ballot measures.

A statewide telephone poll of 976 registered voters was conducted by the Walter Cronkite School of Journalism and Mass Communication at Arizona State University and Eight/KAET-TV.

63% of those polled stated that they would vote for Proposition 202; 19% said they would vote against it, and 18% did not know or had no opinion.[8]

Month of Poll In Favor Opposed Undecided
Sept 2008 63 percent 19 percent 18 percent

The same poll asked respondents about their levels of support for Arizona Marriage Protection, Proposition 102 (2008).

Path to the ballot

See also: Laws governing the initiative process in Arizona

Supporters of the measure filed signatures on July 1 to qualify it for the November 4, 2008 ballot. On August 7, Deputy Secretary of State Kevin Tyne announced that Proposition 202 had more than enough signatures to qualify for the ballot.[9][10] Two competing ballot measures failed to collect enough signatures.

See also

External links

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