Immigrant law ruling assessed

Feb 8, 2010 — Tulsa World

Omer Gillham

Feb. 8, 2010 (McClatchy-Tribune Regional News delivered by Newstex) -- State officials are mulling their options after a federal appeals court pruned two key provisions of an immigration law aimed to reduce the number of undocumented workers and families across Oklahoma.

The 10th U.S. Circuit Court of Appeals in Denver upheld an injunction Tuesday against employer provisions of the Oklahoma Taxpayer and Citizens Protection Act of 2007, also known as House Bill 1804. However, the court lifted an injunction on a third provision that requires government contractors to verify the legal status of workers on public jobs.

The provision could affect hundreds of millions of dollars in government work.

However, authorities will not enforce that provision until the 10th Circuit issues a mandate, said Charlie Price, a spokesman for Oklahoma Attorney General Drew Edmondson.

He said the attorney general has until Feb. 16 to ask the full court for a hearing on the rejected provisions.

"We can request a hearing of the full court since this ruling came from a three-member panel of the court," Price said. "We are still deciding this option."

One of the rejected provisions barred employers from firing workers who are legal U.S. residents while retaining workers who entered the country illegally. The three-judge panel also ruled against requiring businesses that hire private contractors to obtain documents showing that the individuals are authorized to work in this country or, if the documents are not provided, to withhold those contractors' taxes at the top rate.

The court's 3-0 decision against the two provisions means that they will not be enforced, pending further legal action.

However, the court ruled 2-1 for a part of the law that requires employers to use a federal computer system, E-Verify, or an equivalent to check the eligibility of job applicants. The provision affects only businesses that get contracts from government entities for physical performance of services, such as construction of roads or bridges.

The law's primary author, Rep. Randy Terrill, said the ruling was a home run for the controversial statute.

"It is massively important and hugely significant that we prevailed on the requirement for E-Verify to be used by contractors for public work," said Terrill, R-Moore. "This was the most significant item of the three provisions under the injunction. I feel confident we can prevail on at least one point, if not two, of the items still under the injunction."

Although the provision has yet to be enforced, construction companies are speaking out about the potential damage it could cause.

"With E-Verify, you could potentially drive up construction costs due to added overhead and administrative costs," said Doug Tapp, the executive director of the Associated General Contractors in Oklahoma. "This could affect not only bridges and roads but other public work as well."

E-Verify uses a database that lists a person's name and Social Security number or, if the person is an immigrant, the legal residency status.

Tulsa Hispanic leaders said E-Verify would hurt workers and the Tulsa economy.

Francisco Trevino, the executive director of the Greater Tulsa Hispanic Chamber of Commerce, said the E-Verify system is known for errors and could result in jobs being denied to legal residents.

Terrill said: "I am confident that E-Verify is not only quick and accurate but it works in a real-world setting. I have seen it in real-time operation."

HB 1804 would let an employer use other systems to verify an employee's legal status, including the Social Security Number Verification Service or a third-party equivalent. The worker-verification programs vary in accuracy, say court documents that supported the injunction against HB 1804.

However, the system does seem to detect Social Security numbers apparently used by more than one person. Between June 2004 and March 2007, E-Verify recorded 3.5 incidents of use, records show. Of that total, 744,000 involved a Social Security number that was used more than once. That's 21 percent of the total.

Not all of the duplications were deemed to be identity fraud. However, it is believed that thousands of them were because undocumented workers used other people's Social Security numbers, records state.

An immigration reform group applauded the affirmation of the E-verify provision.

"We have been working at this for six years to establish a fair playing field for all workers," said Carol Helm, the director of Immigration Reform for Oklahoma Now.

"Without this provision, you essentially have two sets of labor laws and two sets of taxes on workers and employers. You and I have to prove our legal status and pay taxes, but I would say 90 percent of illegal workers are working for cash under the table without legal status and without paying payroll taxes," she said.

Omer Gillham 581-8301 omer.gillham@tulsaworld.com

Newstex ID: KRTB-0205-41888026