Increasingly, states have become lightning rods for controversial employment issues. Last winter, Wisconsin became a battleground over public employee unions. Then Arizona attracted national attention when it adopted strict laws aimed at addressing the illegal immigration issue. These internal battles may seem relevant only to the state in which they occur. Not so now after the May 26, 2011 United States Supreme Court decision in Chamber of Commerce v. Whiting. That case, addressing the Arizona immigration laws, has a significant impact on laws recently enacted by the Virginia legislature, and Virginia employers should take note.

In Whiting, the Supreme Court determined that the Federal Immigration Reform and Control Act (“IRCA”) does not preempt (i.e. nullify) provisions of Arizona’s law imposing civil penalties on employers who hire unauthorized aliens and mandating certain employers to conduct employee background checks through E-Verify. The Court did rule that the IRCA does prohibit states from imposing “civil or criminal sanctions” on employers who hire unauthorized aliens. This is significant because current Virginia law makes it a class 1 misdemeanor under Section 40.1-11.1 for a business to hire unauthorized workers. Under the Supreme Court’s ruling, that provision is now not enforceable. (However, note that the Virginia statute also makes it a requirement for employer application forms to ask prospective employees if they are legally eligible for employment in the United States.)