When the Suffolk County legislature passed a bill last week requiring 17,000 contractors to verify the immigration status of their employees or risk the loss of their license, it created an enforcement nightmare. As County Executive Steve Levy noted the day after the bill's passage, the enforcement will largely depend on complaints and random checks. In the real world, this likely means that contractors with Spanish speaking work forces can expect to come under closer scrutiny. Levy threatened to tighten the screws further by suggesting that contractors might be required to use the E-Verify system, an on-line employee registration system.
Suffolk County is part of an ever growing trend of more than 100 communities around the U.S. that have tried -- with limited success -- to enforce immigration laws that the federal government is unable to enforce itself. Most of these enforcement measures take the form of penalties on employers who knowingly hire undocumented workers. Since 1986, federal law has required all employers to verify that new workers are eligible to work in the U.S. by reviewing certain specified documents. However, there has been little enforcement of the rules on the federal level. Now, the problem is out of control. With estimates of at least ten to fifteen million undocumented immigrants nationwide and a Congress that is stalemated on immigration reform, the U.S. Immigration and Customs Enforcement (ICE) has made a show of stepping up enforcement efforts. On May 15, 2008, for example, ICE issued a press release announcing it had arrested 18 undocumented immigrants at a restaurant in San Diego. The press release further notes that "Today's worksite enforcement action is part of ICE's ongoing nationwide effort to shut down the employment magnet fueling illegal immigration." ICE statistics for 2007 show that "more than 4,900 arrests were made in connection with worksite enforcement investigations." How the apprehension of 18 undocumented Mexican workers in the latest effort or 4,900 through all of 2007 will significantly accomplish the goal of removing 15 million undocumented workers is hard to understand.
But the growing frustration is easy to understand. The federal courts initially reacted to these local laws with skepticism and outright disdain. But that too is changing. In February, a federal judge in Arizona upheld a state law that imposed severe penalties on employers who knowingly hire illegal immigrants. In December, a judge in Oklahoma threw out a lawsuit brought by contractors and immigrant groups seeking to stop enforcement of a state statute much like the one passed by the Suffolk County legislature. The judge made it clear he had no patience for the litigation, bluntly stating, "This Court is convinced that the proper remedy for the injuries alleged by the remaining Plaintiffs -- all of whom are in willing violation of federal immigration law -- is not judicial intervention, rather, it is simple compliance with federal immigration law."
The Suffolk County bill -- yet to be signed by the county executive -- will almost certainly result in protracted litigation of its own. It will also be difficult to enforce. Many contractors will simply resort to paying workers "off the books" or designating them as independent contractors. Others will think twice about sending Spanish speaking employees to certain job sites. Our best advice? First, and most obviously, all employers should follow the law. Every employee must complete an I-9 form and must present the appropriate documentation to show he or she is eligible to work in the U.S. Secondly, employers must be very clear about the law regarding subcontractors. Although employers do not have the same requirements to verify the immigration status of independent contractors as they do with employees, calling an employee a subcontractor to avoid immigration and tax requirements is illegal and can result in criminal prosecution. Finally, no contractor should put up with discrimination. A customer, competitor or co-worker who threatens to complain to the county Labor Department regarding non English speaking workers at a job site may themselves in violation of the law.
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