CAMBIO de COLORES 2003
Latinos in Missouri:
Neighbors in Urban and Rural Communities
Employment Panel
Impact of the
Attorney Mira A. Mdivani
Immigration Law Practice
The Law Firm of Klamann & Hubbard, P.A.
(913) 327-7600
www. kh-law.com/immigration
I Introduction: The Hispanic Workforce
in
Workers
II. Undocumented Workers Are More
Vulnerable to Discrimination and Unlawful Labor Practices after the Supreme Court Decision in Hoffman Plastic
Compounds
III. IRCA Compliance and Employer Sanctions
IV. Use of
RICO in Criminal and Civil Suits Based on Employment of Undocumented Workers
V. Solutions Available Under Current Laws
and Needed for the Future
VI.
Conclusion
I. Introduction: The Need for the
Hispanic Workforce in
Federal Reserve Chairman Alan Greenspan told Congress on
How does this need for immigrant labor impact
II. Undocumented Workers are More
Vulnerable to Discrimination and Unlawful Labor Practices after the Supreme Court Decision in Hoffman
Plastic Compounds
In a 2002 decision, the U.S. Supreme Court’s Chief
Justice William Renquist summarized the court’s view on whether an undocumented
worker is eligible for back pay or reinstatement for being illegally fired by
his employer:
On the final day of the hearing, Castro testified that he
was born in
work in, the
Counsel offered any evidence that Castro had applied or
intended to
apply for legal authorization to
work in the
testimony, the ALJ found the
Board precluded from awarding Castro
back pay or reinstatement...
(Emphasis added).
The astonishing
part of this opinion, reversing the long-standing Supreme Court’s precedent in
Sure-Tan, Inc. v. NLRB , is Chief Justice Rehnquist’s
use of the lower court’s finding that “[the illegal alien] has not offered any
evidence that [he] had applied or intended to apply for legal authorization to
work in the U.S.” as a relevant factor in arriving at a decision. The Chief
Justice used this finding to support the Court’s decision to affirm the lower
court’s denial of the worker’s claim for back pay and reinstatement. In fact, it appears that the Chief Justice
was not aware that there is no law which could have allowed this particular
“illegal” alien to “apply or intend to apply” for legal work
authorization. In fact, Hoffman Plastic
Compounds, the very employer who illegally fired the worker in this case, was
the only party who could have applied for a temporary work visa or an
employment-based green card for Mr. Castro.
Instead, the employer chose to continue to employ the alien illegally
and use the fact that the worker was undocumented, to fire him in violation of
federal law. The Supreme Court sided
with the employer: while finding that the termination was illegal, the Court
said that it would be a violation of our immigration policy to award an
undocumented worker back pay and reinstatement.
The Court said that the only punishment the employer deserves in this
case is a small fine. After the
Hoffman Plastics decision, many immigrant rights advocates are left to wonder
whether other anti-discrimination and illegal employment practices laws are any
more effective tools in protecting the rights of undocumented workers.
III. IRCA Compliance and Employer Sanctions
1. IRCA
Compliance
The Immigration Reform and Control Act (IRCA)
makes it illegal for an employer to hire, recruit or
refer for a fee someone not authorized to work. The statute covers employers who are natural
persons and business entities.
Successor employers who retain a predecessor’s employees are either
responsible for executing new I-9s or are liable for predecessor’s failure to
complete or defective completion of I-9s.
An employer violates the Immigration and Naturalization Act where:
(i) It
employs an alien knowing that the alien is not authorized to be employed under the Immigration and
Naturalization Act or by Attorney
General.
(ii) It
continues to employ an alien knowing that the alien has become unauthorized.
Where the employer is informed that the employee is or
may be unauthorized to work by the INS, it must inquire further because it is
on constructive notice of unlawful employment . Actual knowledge is not required, the
“should have known” standard is applied where the employer fails to verify and
re-verify the employee’s status to determine the continuing validity of the
employee’s employment authorization. The
INS regulation adopts a broad view in its definition of “knowing” as including
“not only actual knowledge, but also knowledge which may be fairly inferred
through notice of certain facts and circumstances which would lead a person,
through the exercise of reasonable care, to know about a certain
condition.” Under INS regulation,
knowledge may be inferred where the employer fails to complete or improperly
completes an I-9; has information available to it that the indicated employee
is not authorized to work; or acts with reckless disregard by permitting
another individual to introduce unauthorized workers to the work force. However, knowledge cannot be inferred from an
employee’s foreign appearance or accent.
(iii) Immigration
and Nationality Act is violated where the employer fails to comply
with the IRCA-imposed verification system.
Under IRCA, the employer must attest under penalty of
perjury on INS Form I-9 that an employee produced either documents establishing
both employment authorization and identity or separate documents evidencing
employment authorization and documents establishing identity. It is the employer, and not the employee,
who is liable for any defects in the completion of section 1 and defects in the
completion and accuracy of section 2 of Form I-9. The examination and verification of documents
should take place within three days of the hiring date. While demanding compliance, IRCA at the same
time prohibits the employer from requiring or specifying which documents an
individual is to present. This would
constitute a violation of the Unfair Immigration Employment Practices
provision. Employers must retain I-9s
for three years after the date of hiring or referral or one year after the
worker’s employment is terminated, whichever is later. If a worker’s employment authorization
expires or the INS informs the employer that the authorization is not
sufficient, the employer must re-verify the I-9 or be on notice that the person
is not eligible for employment. It is
important to note that false attestations on Form I-9 are a separate criminal
offense. In addition, it may be treated
as a crime of misrepresentation to federal officers.
2. Civil
Penalties
Civil penalties under IRCA for employing an
unauthorized alien (excluding paperwork violations) include:
First offense: $275.00 to $2,220.00 for each alien;
Second offense: $2,200.00 to $5,500.00 for each alien;
Subsequent offenses: $3,300.00 to $11,000.00 for each alien.
In addition, fines may be imposed for paperwork
violations, i.e. failure to fill out and maintain I-9s correctly, in the
amounts of $110.00 to $1,100.00 for each I-9 form.
Defenses and mitigating circumstances may include: the size
of the employer, good faith of the employer, seriousness of the violation,
employee in fact being authorized to work, and any history of previous
violations by the same employer.
Any federal contractor may lose its right to do business
with the federal government for IRCA violations under Executive Order 12989 (
IV. Use of RICO in Criminal and Civil Suits
Based on Employment of Undocumented Workers
In 1996, the Illegal Immigration Reform and Control Act
made employment of workers without employment authorization a predicate offence
under The Racketeering Influenced and Corrupt Organization Act (“RICO”). Since 2001, civil and criminal suits
involving prosecution of employers who hire undocumented workers, have been
changing the way employers are looking at such practices.
A. Criminal
Prosecution of Tyson Foods Under RICO
Criminal penalties, including up to $3,000 and/or six
months in jail, may
be imposed under 8 CFR §274a.10 if a “pattern and practice” of IRCA violations
is found. It is also a criminal
offense, under 8 U.S.C.§1325a(a)(3)(A), carrying a
penalty of up to five years in jail for “any person who during a twelve month
period knowingly hires for employment at least ten individuals with actual
knowledge” that these individuals are not authorized to work and where such
individuals were brought to the U.S. in violation of 18 U.S.C.§1324. These laws were used by the Department of
Justice to file a federal suit at the U.S. District Court for the Eastern
District of Tennessee against Tyson Foods, Inc., the world’s largest producer
of poultry products, for alleged participation in a scheme to smuggle and
employ illegal aliens. In December of
2001, after Tyson refused to settle the case for One Hundred Million Dollars,
the charges resulted in the grand jury’s thirty-six count indictment against
the company’s executives and managers.
INS Commissioner James Ziglar said in the Department of Justice Release
on
“This case represents the first time INS has taken action
against a company of Tyson’s magnitude. INS means business and companies, regardless
of size, are on notice that the INS
is committed to enforcing compliance with immigration laws...”
The Tyson case is now in trial and we are awaiting its
results. Meanwhile, similar indictments
across the country have businesses fear treble damages, forfeiture of their
plants and imprisonment of their management personnel based on their employment
of undocumented workers.
B. A Group
of Companies Wins a RICO Appeal Against a Competitor
Based on Allegations of Hiring “Illegal”Aliens
The Second Circuit’s recent decision in Commercial
Cleaning Services, L.L.C v. Colin Service Systems, Inc. may have opened the
door to a new kind of liability, i.e. treble damages under RICO for employment
of workers who are not authorized to work in the
The Second Circuit reversed the lower court’s decision to
dismiss the claim and allowed the class action to go forward. The found that Commercial was directly
injured by Colin’s unlawful hiring scheme.
If successful on remand, Commercial Cleaning could recover damages of
three times its actual losses under RICO’s civil remedy provision, in addition
to having stopped the alleged unlawful activity. The decision may have an impact beyond a
competitor’s use of illegal aliens. RICO
applies to any party that has maintained an enterprise and caused injury through
a pattern of racketeering activity. A
pattern of racketeering can involve repeated violation of a long list of
federal laws, including mail and wire fraud.
As a result, the Commercial Cleaning decision may provide additional
grounds for civil and criminal liability.
C.
Until now, the Second Circuit was the only appellate
court to have considered allegations of illegal immigrant hiring as a predicate
offence for standing to sue under RICO.
In June of 2002, as part of a CLE presentation for the Kansas City
Metropolitan Association, I predicted that Commercial Cleaning was a ticking
bomb, and that we would hear about this case soon. The
V. Solutions Available Under Current Law
and Needed for the Future
While far from perfect (and sometimes rather maddening),
the immigration law as it exists now provides limited solutions to questions
raised by the need to employ foreign workers.
A. Work Visas
and Employment-Based Green Cards
1. Essential
Workers: H-2B
H-2B category may be useful in cases where
employers experience shortages of workers in some occupations, as long as they
can prove that their need is temporary.
It is available for workers performing “agricultural labor or services .
. . of a temporary nature,” or for those engaged in “other temporary services
or labor.” In order to obtain an H-2B
classification for a foreign worker, an employer must be able to demonstrate
that the position offered is (1) of a seasonal nature, e.g. landscape workers;
(2) a one-time occurrence, e.g. a foreign chef specializing in French cuisine
coming to a restaurant to train its workers in the preparation of pastries; or
(3) a peakload or an intermittent need.
The advantages of the H-2B category are that despite the
annual numeric limitation (66,000 visas available annually), visas are almost
always available, and the application process is relatively fast. Another advantage is the ability to bring the
worker’s family to the
2. Agricultural
Workers: H2A
Agricultural employers may bring
workers from abroad on H-2A visas. H-2A visas allows employment for seasonal purposes, such as
harvesting crops.
3. Employment-Based
Permanent Residency
Temporary work visas such as H-2B
or H-2A are limited in their application.
In cases where no visa will work, employers may consider finding
qualified workers abroad and sponsoring green cards for them before the workers
arrived in the
B. Obtaining
Legal Status Through Family
The El Centro 2002 Study shows that 85% of
the undocumented Latinos in
C. Other
Grounds for Obtaining Legal Permanent Residency or
Employment Authorization
Other grounds for obtaining legal permanent
residency in the
D. Needed
Solutions
New legislation is needed at the federal
level to change the status quo. Hispanic
organizations and businesses who depend on their immigrant workforce should
lobby Congress to find sensible solutions to the issue of the undocumented
workers in
VI. Conclusion
The key to improving our economy lies in embracing and
nurturing the immigrant workforce.
Legalizing undocumented Latino workers is at the heart of this
issue. It is also the key to providing
Latino workers with the protection of