On October 18, 2011, the Washington County (Utah) Commission passed an ordinance that requires "businesses that receive a business license from the county to use E-Verify…."
The ordinance was crafted based on a recent Supreme Court decision, Chamber of Commerce v. Whiting, 131 S. Ct. 1968 (2011). In that case, the Court declared that states may require businesses to use E-Verify and that the states can use their licensing authority to enforce employment verification requirements.
According to the Findings section of the Washington County ordinance, illegal aliens are working in the Washington County in violation of federal law, taxes paid by American citizens are used to provide benefits to illegal aliens thereby depriving citizens of Washington County who pay the taxes of the intended benefits of their tax dollars, and that steps to ensure that businesses hire only authorized workers are an important part of resolving the negative effects of illegal immigration.
The ordinance, therefore, requires each place of business covered by the ordinance to verify the employment eligibility of all new hires by using the federal government's E-Verify system. If a place of business fails to comply, it shall be ordered to comply and its business license shall be suspended for up to 10 days for the first instance, 10-20 days for the second instance, and 30 days to permanent suspension for a third instance.
Each time a person applies for a county business license, the person shall certify that the business is operating in compliance with the ordinance. The Clerk/Auditor's office may request that a place of business show compliance and the certification of compliance must be made on a form provided by the Clerk/Auditor's office.
If there is reasonable suspicion that the place of business is not complying with the ordinance, the Clerk/Auditor shall conduct an investigation and when sufficient evidence of non-compliance is found, the evidence shall be turned over to the county attorney's office for action.
In addition, citizens may submit complaints which will be the basis for Clerk/Auditor beginning an investigation. It is a Class C Misdemeanor to file a frivolous complaint and complaints cannot be based solely on an employee or employer's race, religion, gender, ethnicity, and/or national origin.
The County Commission shall appoint a member of the community to act as a hearing officer for complaints. The hearing officer determines whether the county attorney has met its burden of proof. If a business license is suspended, the written decision of the hearing officer shall clearly state the dates the suspension begins and ends.
Appeals of the hearing officer's decisions may be heard by the Washington County Commission. The County Commission will only overturn the hearing officer's decision if it finds that the hearing officer abused his/her discretion or made a clear error in reaching a conclusion.
The ordinance takes effect 60 days from the date it was enacted and is a direct benefit of the legal challenge brought by the U.S. Chamber of Commerce and civil rights groups to state E-Verify requirements. That challenge resulted in the Court determining that state and local governments can require employers to use E-Verify and that they can use their licensing authority to ensure that employers comply with the law without the fear of being sued.
The Washington County ordinance may provide the impetus for other Utah counties to enact similar ordinances, especially since there are ongoing efforts in a number of other counties to enact E-Verify ordinances through the citizen initiative process.