Illegal Immigrants in the Workplace: Why Electronic Verification Benefits Employers
| Publication year | 2006 |
Illegal immigrants pose a serious financial risk for employers. Present federal law requires employers to make a "reasonable" determination regarding the validity of prospective employees' documentation without overreaching and subjecting the employee to hiring discrimination. Failure to correctly make the determination or overreaching when doing so could result in criminal and civil penalties for the employer. The policy's inherent difficulties have permitted some industries to become dependent on comparatively cheaper, illegal labor. Private enforcement actions and electronic verification are two proposed methods to help solve the problem. This Comment will compare these two methods and argue that electronic verification provides a more comprehensive and beneficial solution for employers while private enforcement perpetuates many negative aspects of current policy.
"We'll enforce our immigration laws at the worksite and give employers the tools to verify the legal status of their workers, so there's no excuse left for violating the law."1
—President George W. Bush
I. Introduction
On December 12, 2006, federal immigration authorities raided six plants owned by Swift & Company ("Swift"), a Colorado based meatpacking company that produces $9 billion in annual sales.2 The raids were part of an effort to crack-down on the hiring of illegal immigrants.3 In what would become the largest worksite enforcement operation in U.S. history, officials apprehended 1,282 illegal workers.4
As a result of the raid, Swift lost nearly ten percent of its workforce.5 Moreover, eighteen of Swift's former employees filed a lawsuit in the U.S. District Court for the Northern District of Texas alleging Swift conspired to lower employee wages by hiring illegal aliens in violation of the Racketeer Influenced and Corrupt Organization Act6 ("RICO").7 RICO is a federal law that permits private enforcement of immigration laws when a company participates in a "pattern of racketeering activity."8 The consequences for Swift are severe. If the plaintiffs' claims are successful, the company faces $23 million in liability, not counting turnover costs and loss of productivity from the raids.9
Since 1997, Swift has voluntarily used an electronic verification program known as Basic Pilot.10 Basic Pilot is an Internet-based system that attempts to prevent employers from hiring illegal aliens by verifying prospective employee documentation using government databases.11 once enrolled in the program, employers are required to verify the work authorization of all new hires within three days of employment.12
Employers take the work-authorization information provided by the employee and transmit it via the internet to the Department of Homeland Security (DHS), which processes the information to the Social Security Administration (SSA).13 After SSA electronically compares the information to its records, employers receive a message from DHS either authorizing the employee for work or, should DHS not be able to verify the employee's work authorization after a manual review, instructing the employer to send the employee to SSA to resolve the problem.14 If a non-confirmation notice remains uncontested by the employee after ten days, employers receive a final non-confirmation notice and have the option to either terminate the employee or notify DHS that the employee is being retained.15 If employers choose to retain the employee, the employer could be liable for criminal and civil immigration violations.16
Clearly, however, the program failed to prevent Swift from employing illegal aliens. According to Immigration and Customs Enforcement ("ICE"), the federal authorities responsible for the Swift raid, illegal immigrants were able to "thwart" the Basic Pilot system using stolen social security numbers and other documentation of U.S. citizens.17 Basic Pilot was equipped to expose an applicant's use of false information, but not fraudulent information stolen from unsuspecting Americans.18 Michael Chertoff, Secretary of the Department of Homeland Security, explained that Basic Pilot "is not a magic bullet . . . . [w]hile Basic Pilot inoculates a company against one kind of illegal immigration fraud, it doesn't inoculate against all kinds of fraud."19
Despite this limitation, the State of North Carolina recently mandated that all state agencies, offices, and universities begin using Basic Pilot to ensure that every employee is "legally eligible to work."20 Becoming one of only a handful of states to implement the system, North Carolina requires that all new state hires, ranging between 1,500 and 2,000 per month, be run through the system.21 In addition, the state's 2,189 public schools and 99 charter schools22 were required to implement the system by March 1, 2007.23 In light of the raid on Swift, it may seem that North Carolina is wrong to expend valuable state resources on a seemingly ineffective system. The Swift raid, however, does not merely highlight Basic Pilot's limitations. On the contrary, Swift's experience also illustrates the system's advantages.
This Comment compares the Basic Pilot Program to private enforcement actions and evaluates its ability to mitigate risk for employers and its broader effect on illegal immigration. In doing so, Basic Pilot will be contrasted with private enforcement actions like that utilized against Swift. The comparison will reveal the many disadvantages of private enforcement and Basic Pilot's ability to better provide law-abiding businesses with a level economic playing field and protection against costly immigration violations.
Part II provides an overview of the current debate over employer dependency on illegal labor and outlines a series of economic and political problems perpetuated by the large number of illegal immigrants in the workforce. Part III analyzes current federal regulations and describes the tremendous burden placed on employers when attempting to verify employee work authorization. Part III further posits that selective enforcement by immigration authorities exacerbates these problems. Part IV examines various forms of private enforcement actions—one proposed method for restraining employers from hiring illegal aliens—and suggests that private enforcement actions perpetuate the status quo by enhancing the burden on employers and continuing selective enforcement of the law. Finally, Part v contrasts Basic Pilot with private enforcement and current federal regulations to demonstrate that electronic verification performs three functions: (1) it reduces employer responsibility for immigration enforcement; (2) it enhances the ability of federal authorities to prosecute unscrupulous employers and provide across-the-board enforcement of immigration laws; and (3) it provides an additional tool to detect counterfeit documents offered by prospective employees.
The Pew Hispanic Center estimates between 11.5 and 12 million illegal immigrants live in the United States.24 The resulting costs to taxpayers25 and questions involving border security26 raise many political concerns. However, illegal immigrants have had perhaps their most significant impact on the labor market. There are six to seven million illegal immigrants working in the United States, comprising approximately five percent of the nation's total workforce.27 Whether illegal workers have had a positive or negative effect on the labor market has long been the subject of a heated debate. On the one side, employers claim that the influx of illegal labor is vital to the survival of their businesses. on the other, workers' rights advocates argue that illegal immigrants depress their wages and working conditions. As the following analysis reveals, they both may be right.
Many employers, particularly those in industries involving heavy labor and dangerous or unsavory working conditions, argue that American citizens are simply unwilling to work under the conditions these jobs require.28 The number of illegal aliens employed by these industries suggests that employers are correct. Illegal immigrants comprise "fourteen percent of all construction workers, seventeen percent of all cleaning workers, twelve percent of all food preparation workers, and twenty-four percent of all farm workers."29 Employers insist the loss of these employees would threaten the viability of their businesses. For example, several North Carolina employers recently stated that illegal immigrants were "meeting [their] critical need" for labor.30 Moreover, attorneys for Swift sought to enjoin immigration officials from conducting raids on its facilities by arguing the company would lose forty percent of its workforce due to the government crack down.31 Members of Congress have even stated that there is a dependency on illegal labor in these industries.32 Therefore, many employers would be hurt by the sudden loss of illegal labor.
This evidence, however, supplies only a partial picture of the self-perpetuating character of employer dependency on illegal labor. Peter Cappelli, Director of the Center for Human Resources at the Wharton School of the University of Pennsylvania, proposes a different theory for this dependency:
Immigrants have been hired to do [low-skilled] jobs in such large numbers, not because Americans refuse them, but because Americans are not willing to perform such tasks where wages are lower than they would otherwise be, where work rules may not exist and where the working conditions may be hazardous.33 Thus, as more and more employers took advantage of illegal labor to lower their costs, the necessity to stay competitive in the marketplace evolved into industry-wide dependency.34
Professor Cappelli is not alone in this assessment. As early as 1988, Congress was aware employers were hiring cheaper and more vulnerable illegal workers, and that the practice was depressing wages and...
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