Illegal Employers

Who would have guessed that one of the issues deadlocking federal budget negotiations would be how many undocumented aliens to legalize? Just four years ago, Congress enacted, and the president signed, the toughest anti-immigrant legislation in decades. But today, labor, business, and political elites are praising as "essential workers" the immigrants they used to call "illegal aliens."

The players are operating from different motives. Labor sees organizing potential in workplaces now dominated by immigrant workers. Business is interested in a stable work force in a time of labor shortages. And politicians have recognized the voting strength of immigrant and ethnic communities. This congeries of interests may be just enough to get a deal through a lame-duck Congress and administration.

Earlier this year, the AFL-CIO proposed ending sanctions against employers who hire undocumented alien workers and urged a general amnesty for the five million or more undocumented immigrants believed to be living in the United States. The demand for a repeal of employer sanctions was a remarkable turnabout. The AFL-CIO had been a staunch defender of the program since it was enacted in 1986. It now believes that the sanctions regime interferes with its effort to organize.

Here's why. Although the Immigration and Naturalization Service (INS) has a standing policy that counsels against enforcement actions in the midst of labor disputes, agency officials at the local level have not always proceeded with caution. In several well-publicized cases, employers facing union organizing campaigns notified the INS when they suddenly "discovered" that some of their employees were not authorized to work in the United States. Last year at a Holiday Inn Express hotel in Minneapolis, just after the workers voted to join Local 17 of the Hotel Employees and Restaurant Employees International Union, a call by the employer to the INS resulted in the arrest of eight members of the union's negotiating committee.

The outcome of the Holiday Inn Express case illustrates just how ineffectual the current sanctions system really is. The employees made the courageous decision to file complaints with the National Labor Relations Board and the Equal Employment Opportunity Commission, charging that the employer's action constituted illegal retaliation and that the hotel had discriminated against Mexican workers by paying them less and working them harder than it did Anglo workers. The hotel admitted no wrongdoing and settled the case for $72,000, to be split among the employees. (Because of the assistance the immigrants provided in enforcing federal labor laws, they were granted permission to remain in the United States for two years--time enough, according to the INS, "to arrange their affairs before returning to their home countries.") But the INS has taken no steps to sanction or fine the employer.

There is thus much to the AFL-CIO's claim that the law has spawned a "poorly constructed and ineffectively enforced system" that causes "discrimination and leaves unpunished unscrupulous employers who exploit undocumented workers." In its early years enforcing the law, the INS focused on educating employers about their new responsibilities to check documents. In the 1990s, the agency shifted its emphasis to removing undocumented workers found through "audits" of employer records. In some local offices, novel arrangements with employers permitted them to terminate undocumented employees over time while they recruited lawful replacement workers. The INS imposed a few spectacular fines on particularly egregious violators, but for the most part, the agency was satisfied when the employer fired the unauthorized immigrant--leaving the employee free to seek work elsewhere.

Last year the INS announced a new enforcement strategy that focuses primarily on removing aliens who have committed crimes in the United States and on disrupting immigrant-smuggling operations. Work site enforcement has been refashioned as part of a goal to "block and remove employers' access to undocumented workers." The fact that it has been placed last on the list of priorities has not been lost on the field offices. In fiscal year 1999, employer-sanction case completions dropped a whopping 59 percent. INS data for the first 11 months of fiscal year 2000 shows an additional drop of 31 percent in employer cases. (During that period, smuggling cases rose by 25 percent and fraud cases by 11 percent.) Arrests of undocumented workers at work sites fell from around 20,000 two years ago to 8,600 last year (with less than one-fifth of 1 percent of undocumented immigrants estimated to be residing in the United States).

In short, the chances of arrest for an undocumented worker--or a penalty for his or her employer--range from slim to none. The INS's then-top official for policy, Robert Bach, told Th New York Times last March that undocumented workers face little risk "unless the employer turns a worker in, and employers usually do that only to break a union or prevent a strike or that kind of stuff."

That, of course, is precisely the AFL-CIO's complaint. Employer sanctions have not kept undocumented immigrants out of the workplace, and unscrupulous employers rarely face penalties. Instead, the law has provided employers with a justification for firing workers engaged in union activity.

The AFL-CIO has long contended that workers with legal status are easier to organize and better able to assert their rights--hence its call for a massive new amnesty for undocumented workers. More surprising is that employer groups have begun to show support for legalization. The primary reason is the recognition that undocumented workers are a vital part of the American labor market.

Last year a number of employer associations--including the American Hotel and Motel Association, the American Meat Institute, the American Road and Transportation Builders Association, the American Nursery and Landscape Association, Associated Builders and Contractors, and the U.S. Chamber of Commerce--established the Essential Worker Immigration Coalition (EWIC). According to the coalition's mission statement, "There simply are not enough people to meet the demands of our strong economy." In a letter to members of Congress, the coalition has declared that "the global workforce market should be more readily available to businesses in order to meet our workforce needs."

The asserted shortage of workers, at first glance, poses a conundrum. If the employer-sanction law has failed in deterring the hiring of undocumented workers, how can it be that (in the words of EWIC) "businesses are now finding themselves with no applicants of any kind for numerous job offerings"? The answer, in part, is the booming economy, as well as the job preferences of U.S. workers. Furthermore, the Social Security Administration has begun to inform employers of workers who have given Social Security numbers that don't match their names. Although these employers face little threat of penalties under the immigration law, they may feel obligated to let the employees go.

The demand for "essential workers" could be met by a temporary-worker program, a proposal that agricultural interests in Congress have been pressing for years. But most immigrant advocates in the United States oppose new temporary-worker programs--as has the Clinton administration. And rightly so. These programs give employers both flexibility and power; if an employer terminates a contract, the immigrant is legally required to leave the country. Because many temporary workers want to return to the United States in future years, they are unlikely to complain about working conditions or bring charges of unlawful retaliation against employers.

Business groups appear willing to support legalization efforts as an initial step--which would help stabilize the labor market--with the hope of gaining temporary-worker programs in the future. With both major parties wooing Hispanic voters and with a good economy giving political cover, the time is right for what would have seemed unthinkable only a few years ago: a legalization program for undocumented workers and their families in the United States.

The current controversy in Congress is about the shape that legalization should take. Republicans argue that any large-scale amnesty would reward lawbreakers and provide incentives for future illegal immigration. They have been willing to talk about limited initiatives, such as granting status to immigrants as of 1982 who missed the last legalization effort owing to invalid INS regulations. Democrats have pushed a broader program that would legalize immigrants who have resided in the United States since 1986 (the proposal is one part of the so-called Latino and Immigrant Fairness bill). This would be accomplished by an amendment to a provision in the immigration code--known as "registry"--that presently authorizes legal status for aliens without papers who entered the United States before 1972.

Another legalization strategy would be the adoption of a general statute of limitations: An undocumented immigrant would be able to apply for legal status if the INS hadn't deported him or her after a certain number of years. A statute of limitations would be, in effect, a "rolling" amnesty program. So long as the program excluded aliens with criminal convictions, it could be justified on the grounds that any alien who has lived in the United States for a lengthy period is probably an economically productive member of society and is unlikely to have been a burden (since undocumented aliens are ineligible for virtually all means-tested benefit programs).

A broad amnesty or statute of limitations may be more than the American people are willing to provide for undocumented immigrants today. There may be greater appeal in an essential-worker approach that would be crafted for industries with demonstrated labor shortages and a high percentage of immigrant workers. Undocumented workers who can show their prior participation in the industry labor force would be granted green cards, perhaps with the requirement that they stay in the industry for a one- or two-year period. (In one way, essential-worker legalization programs would be more generous than an amnesty because they could encompass more recently arrived workers.)

The best answer is a statute of limitations--set, perhaps, at 10 years. An alien who has resided that long in the United States, and who has not committed a criminal offense or been on the public dole, is likely to have been gainfully employed and to have established deep roots in a local community. Because these are the aliens least likely to be removed by the INS, there is little law enforcement justification for keeping them in a vulnerable, undocumented status.

The AFL-CIO's call for legalization is welcome, but the accompanying demand for an end to employer sanctions is dubious. Ending sanctions would raise a white flag in the effort to stem undocumented migration. It would have a disproportionate impact on undocumented workers from Mexico and Central America because it would limit enforcement to illegal border-crossing while giving a virtual pass to illegal immigrants (largely from Europe and Asia) who have arrived with valid tourist or other temporary visas but have overstayed.

Employer sanctions can and should be part of federal enforcement efforts that target employers who operate exploitative workplaces by violating immigration, labor, tax, antidiscrimination, and health-and-safety rules. Public attention has tended to focus on the issue of illegal aliens; it is time to direct attention instead to illegal employers, who gain a competitive advantage over legitimate businesses by ignoring rules that protect workers. To address labor's concern that the current legal approach has permitted employers to use the immigration laws against employees, federal law should be amended to provide whistle-blower protection for undocumented employees who report their employers' violations of law to the appropriate agencies.

A healthy economy and the end of the election cycle present an opportunity for a well-crafted immigrant legalization proposal. A large-scale legalization program, coupled with enforcement directed against illegal employers, would represent a remarkable change in fortune for the millions of undocumented workers who just a few years ago were the targets of the harshest immigration policies of the past half-century. ยค