Tag Archives: employment

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Legal Arizona Workers Act Does Not Cause Expected Upheaval

In 2007, the state of Arizona made its first foray into “immigration reform” when it passed the Legal Arizona Workers Act. However, before the Legal Arizona Workers Act (LAWA) even became effective on Jan. 1, 2008, the Legislature went to work on amending the statute, presumably to “cure” some of the more controversial aspects of the law.

While the fundamental purpose and structure of LAWA has not changed, employers need to be aware of the current version of the law in order to limit the chances of being on the receiving end of an enforcement action. For example, the same legislation that tweaked LAWA also criminalized the act of knowingly accepting identity information from someone who is not actually the person represented in that identity information. Nevertheless, recent trends reported by a researcher from the University of Arizona suggest the enforcement tsunami that was expected to hit the business community is, up to now, little more than a ripple in a pond.

LAWA prohibits employers from “knowingly” or “intentionally” employing any unauthorized alien workers after 2007, and creates stiff penalties for employers who do. Penalties for first violations include mandatory probation for, and possible temporary suspension of, all business licenses issued by the state of Arizona. For a second violation during the probationary period, whether knowing or intentional, employers face permanent revocation of their state-issued licenses — thus effectively preventing the employer from doing business in Arizona. LAWA also requires every Arizona employer to verify new hire work eligibility through the federal government’s E-Verify system. However, LAWA created no “penalty” for failure to use E-Verify. So an employer who becomes the target of an enforcement action will likely be presumed to have “knowingly” hired an undocumented worker if that employer failed to use E-Verify. Evidently, most employers have decided either to roll the dice or they simply don’t recognize a risk. According to Department of Homeland Security data, as of late August 2008, only 5.6 percent of Arizona employers have enrolled in E-Verify.

Non-participation in E-Verify is not an option for contractors and subcontractors of any Arizona governmental entity. The LAWA amendments passed last year require those employers to participate in E-Verify as a condition of their government contract. In fact, any Arizona governmental entity (state or any political subdivision) would be prohibited from awarding a contract if the contractor or subcontractor does not comply with federal immigration laws and E-Verify requirements. LAWA requires government entities to ensure that their contractors comply with those requirements, and to include the following terms in their contracts:

  • Each contractor or subcontractor must warrant their compliance with LAWA’s provisions.
  • A breach of that warranty is to be deemed a material breach of the contract, subject to penalties up to, and including, termination of the contract.
  • The government entity retains the legal right to inspect the papers of the contractor and subcontractor employees who work on the contract in order to ensure compliance with the warranty.

Also, employers seeking to obtain an economic development incentive from a government entity must first register for and participate in E-Verify, and show proof of doing so. LAWA further requires the Attorney General’s office to, on a quarterly basis, request a list of Arizona employers registered with E-Verify from the Department of Homeland Security. The Attorney General must make that list available to the public on its Web site.

So far, enforcement actions against employers have been anemic at best. Judith Gans, manager of the Immigration Policy Program at the University of Arizona’s Udall Center for Studies in Public Policy, prepared a study on the preliminary impact of LAWA on immigration trends and businesses in Arizona. She found that not a single superior court enforcement action was filed during the first year of LAWA’s existence. The number of complaints filed with each county attorney during that period was one or none in nine out of Arizona’s 15 counties. The Pima County attorney reported only five complaints, four of which were declined because they involved individuals hired before 2008. The Maricopa County attorney’s office stated that it does not keep track of the number of reported complaints, and those that are filed reportedly are turned over to the county sheriff for investigation. Notwithstanding a number of high profile “raids” conducted by Maricopa County Sheriff Joe Arpaio in 2008, as reported in the local media at the time, no complaints have resulted in a LAWA enforcement action to date.

Finally, LAWA’s potentially adverse impact on Arizona’s economy has been negligible, or is simply undetectable. According to Gans’ study, the current recession has had a disproportionately adverse impact on business sectors that rely heavily on immigrant labor, such as construction. Therefore, because employment of all workers in those sectors, including immigrant labor, has been hard hit as a result of the current economic meltdown, any “LAWA-effect” has been masked.

Pick the Right Employee

Hiring The Right People Is More Important Than Ever, But Are You Asking The Right Questions?

When the economy slows, companies tend to slow their hiring and expect more from their existing employees. It quickly becomes critical that employees perform up to these new, heightened expectations. For those positions that companies do hire for, selecting the right candidate becomes more important than ever. However, many hiring managers tend to ask the wrong questions, focusing the interview on traits that are very trainable versus those traits that a company cannot train.

Hiring managers tend to focus questions on experience for the position, systems knowledge, actual time spent doing the job with previous employers, etc. In fact, these are actually poor predictors of a candidate’s success in the workplace. Generally, only employees applying for professionally educated positions (e.g. engineers, chemists, attorneys, etc.,) are exempt from this best practice. So what should you focus your interview on?

Focus of questions
Center your questions on traits that take more effort to develop. Interview questions should dwell on attention to detail, the candidate’s passion for the job, their initiative, and their self-confidence, to name a few.

There are many hiring managers that value a relative lack of experience (and many human resource managers that agree). Candidates without experience tend to lack the bad habits typical of those with experience. It is often easier to train a green candidate from ground zero (sometimes called growing a candidate organically) versus “untraining” an experienced candidate’s bad habits and then inserting the desired habits. A candidate who has worked for several companies doing similar roles and is now in your office looking for a job may have a significant number of bad habits and has a track record of leaving previous employers for “employment competitors.”

Experience is one of the easier items to give a new hire. However, try giving a new employee stronger customer-service skills, greater self-confidence to deal with those problem vendors, or a hunger for doing a great job. Those are not easily trainable, so those traits are what an interview should focus on.

Types of questions
Spend your time asking the candidate behavior-oriented questions. Typically, these questions start with phrases like, “Tell me about a time when you …” or “Give me a specific example of a time when you …” When asking these behaviorally focused questions, it is critical that the candidate gives you one specific example. Further, ensure he isolates his role in his example; don’t allow him to use words such as “we” or “our.” If he does, ask him what his specific role. This helps ensure his answer provides you with the information you need.

The days of asking, “If you were a tree, what kind of tree would you be and why” are over. The current trend is asking negative questions — questions that force a candidate to talk about her weaknesses. This helps you see her willingness to admit mistakes, how she has handled mistakes in the past, and — most importantly — what she has learned from those mistakes.

Sample questions
Putting these guidelines together is the key to a solid interview. Some general, behaviorally focused questions include:

Tell me about the last time you had a disagreement with a co-worker and what you did about it? — Listen to what the issue was over, how productive and mature the approach was, and what he specifically did to solve the problem. Candidates who have a passion for their work will work to resolve issues with co-workers and will keep the boss informed of personality clashes, typically without asking for intervention.

Tell me about the biggest mistake you made in the last 12 months and what you learned from it. — This negative question forces the candidate to take ownership for a relatively large mistake and should end with her telling you what steps she took to ensure a similar mistake (e.g. a time-management snafu, a relationship-building blunder, etc.) would not happen again. All employees make mistakes. Admitting them and taking corrective steps is the absolute most an employer can ask from their employees.

Give me your top three strengths and your biggest developmental need (weakness). — It is very telling to hear what a candidate believes are his behavioral strengths, as well as his biggest need. Listen for strengths that are traits you cannot teach a candidate (e.g. passion for the job, ability to work with others, etc.). Do not let candidates get away with telling you that their biggest need is that they work too hard or plan too much. Tell your candidate to dig deeper.

Interviews can be very useful at pulling out the different strengths and weaknesses of a candidate, as long as the interviewer is focused on the right personality traits and asks the right questions. Pull their experience from their resume, but pull their personality from their interview.