Thursday, September 16, 2010

3rd Cir. Strikes Down Hazleton, PA Immigration Law - COTW # 7

Last week, the Third Circuit struck down several immigration reform ordinances promulgated by Hazleton, Pennsylvania. Lozano v. City of Hazleton, 07-3531, 2010 WL 3504538 (3d Cir. Sept. 9, 2010). The ordinances included employment provisions that made it unlawful for businesses to hire an "unlawful worker," including unauthorized aliens. The ordinances also compelled employers to use e-verify by providing safe harbor from the hiring provisions for employers who used it, or requiring enrollment for reinstatement of certain licenses.

The problem, is that the ordinances were arguably preempted by federal law, the Federal Immigration Reform and Control Act (IRCA). The Court emphasized that Congress, in passing the IRCA, sought to achieve a "careful balance" by "effectively deterring employment of unauthorized aliens, minimizing the resulting burden on employers, and protecting authorized aliens and citizens perceived as 'foreign' from discrimination." I'll spare you the gory details of the 188 page opinion, and just tell you that the Court found that the employment provisions of the local ordinances were preempted.

In case you don't watch the news, state and local immigration reform has become a big deal lately. This case largely settles some major issues regarding state and local employment immigration laws in the Third Circuit, including Pennsylvania. This could provide some consistency in our Circuit as one Circuit under the federal law.

Employers shouldn't get too comfortable though, because Supreme Court action looms... SCOTUS granted cert in the Ninth Circuit case, Chicanos Por La Causa Inc. v. Napolitano, which upheld similar ordinances in Arizona. The Third Circuit was pretty critical of that decision.

For some fantastic analysis on this case from a fellow employment law blogger, see The Delaware Employment Law Blog's 3d Cir. Finds Anti-Illegal-Alien Ordinance Unconstitutional.

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.

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