ST. GEORGE — Within a matter of days, businesses with a Washington County business license must use the federal E-Verify system to check the legal status of new workers or face penalties.
Those that fail to comply with the ordinance, which goes into effect Dec. 17, risk temporary suspension — even revocation for three or more instances of noncompliance — of their business licenses.
Employers are supposed to check the status of new hires through the federal E-Verify system by the worker's third day on the job. When applying for a new license or yearly renewal, applicants must certify they have complied with the ordinance.
Washington County Commissioner Dennis Drake said the ordinance was the product of a working group formed five years ago to consider local approaches to various immigration issues affecting the area.
The intent of the ordinance is to protect employers and to stimulate employment of people legally entitled to work in the United States, Drake said.
"We're one of the hardest hit counties in the state in terms of unemployment. It's about 9.3 percent here. We want to employ people who are here legally," Drake said.
The ordinance applies only to businesses in the unincorporated area of the county, which number about 150 compared to 6,200 in St. George.
Employment verification, Drake said, "is the first thing the federal government has allowed local government to do."
In recent years, Washington County cross-deputized officers as Immigrations and Customs Enforcement agents in an attempt to further address the impacts of illegal immigration, he said.
In drafting the new ordinance, attorneys relied on a state statute that confers "police powers" to counties as well as state law that allows counties to license businesses in the unincorporated areas of counties, said Washington County Attorney Brock Belnap.
The county ordinance, passed in October, was drafted after the U.S. Supreme Court ruled in May that the states have authority to sanction employers who hire undocumented workers. The decision refers strictly to the issuance or renewal of business licenses.
"We tried to draft this ordinance as close as possible to what the Supreme Court approved in (Chamber of Commerce v.) Whiting to avoid having legal problems. In a topic area as fraught as this one, you just never know," Belnap said.
The ordinance establishes a process intended to prevent frivolous complaints. It states, "To provide the basis of an investigation, a citizen complaint must not be based solely on a worker's or employer's race, religion, gender, ethnicity and/or national origin."
Meanwhile, as the effective date of the county ordinance nears, some local business owners are raising concerns about the new requirements.
Doug Glendenning, a St. George business owner who owns and operates restaurants in Utah in several other states, said the requirements of the ordinance are "onerous."
"We need smaller government, not overreaching government," he said.
Glendenning said he is highly concerned about potential civil rights violations by employers attempting to follow the ordinance. "Are they just doing that (E-Verifying) with dark-skinned employees or those with accents? Or are they doing that with everyone?"
Meanwhile, the St. George City Council is considering a similar ordinance. City Councilman Jon Pike said the council plans to undertake a careful study of the issue, including concerns raised by the business community.
"We want to be a community that obeys and sustains the law, so there's a number of messages you can take out of it," Pike said.
"We don't intend to be a sanctuary city. ... We want to be city based on laws and safety."
Drake and Pike each said they would prefer that Congress lead out on the issue. If not Congress, the Utah Legislature should establish uniform policy for the state.
While the Legislature has passed a law that requires businesses with 15 or more employees to use the federal E-Verify program to determine whether their employees can be legally employed, there is no enforcement mechanism in the state law.
Under federal law, use of E-Verify is voluntary, except for employers with federal contracts.
Salt Lake immigration attorneys would not comment whether they believe the ordinances raise constitutional concerns.
Roger Tsai, former Utah chairman of the American Immigration Lawyers Association, questioned whether the approach will meet its intended aims.
"The question in my mind is how much resource, time, money and effort are municipal governments or the state willing and able to dedicate to this issue?" Tsai said. The federal government's enforcement efforts, for instance, have been fairly futile.
For instance, there are an estimated 110,000 to 120,000 undocumented workers in the state. The cost of taking one of them into custody and processing their deportation is about $5,000 per person. The Salt Lake immigration court handles about 3,000 cases a year.
Given that, "they're (local governments) not going to be any more successful at it," Tsai predicted.
Pike said the federal government's inaction on immigration has forced the City Council's hand. He agrees that federal solutions are needed, but as the community attempts to cope with marijuana grows, identity theft, drug trafficking and gang violence, residents want elected officials to take steps to ensure the safety and well-being of area residents.
"We want our community to be safe for families, for seniors, for everybody," Pike said. Many undocumented workers are law abiding, but the population adds "to some of these problems.
"We're going to fight it any way we can that's fair, reasonable and legal."
Glendenning said policies need to be humane and acknowledge the contributions of undocumented workers.
"I'd venture there's not a single house built here in the last five or six years that wasn't built by the hands of some illegal immigrant," he said.