WORKING IMMIGRANTS

The Pew Hispanic Center reports that the annual inflow of unauthorized immigrants to the United States was nearly two-thirds smaller in the March 2007 to March 2009 period than it had been from March 2000 to March 2005.

This has resulted per the Center in a 8% decline in the population of illegal immigrants, from 12 million in March 2007 to 11.1 million in March 2009.

The Pew Hispanic Center's analysis also finds that the most marked decline in the population of unauthorized immigrants has been among those who come from Latin American countries other than Mexico. From 2007 to 2009, the size of this group from the Caribbean, Central America and South America decreased 22%.

Continue reading "Illegal immigration inflow down sharply" »

This July, the United Farm Workers launched a campaign on behalf of immigration reform by inviting Americans to take on a farm worker’s job for a week. My thanks to Becki Shafer for alerting me to this. The UFW wants immigration reform primarily in the AgJobs provision, a version of which was in the failed immigration reform bill of 2008.

A UFW press release says that it has negotiated the AgJOBS bill with the agricultural industry that would give undocumented farm workers presently here the right to earn legal status by continuing to work in agriculture. Senators Feinstein (D-CA) and Lugar (R-IN) are the principal co-authors in the Senate and Congressman Adam Putnam (R-FL) and Howard Berman (D-CA) in the House.

Go here to enroll in the program. That website says that “Job may include using hand tools such as knives, hoes, shovels, etc. Duties may include tilling the soil, transplanting, weeding, thinning, picking, cutting, sorting & packing of harvested produce. May set up & operate irrigation equip. Work is performed outside in all weather conditions (Summertime 90+ degree weather) & is physically demanding requiring workers to bend, stoop, lift & carry up to 50 lbs on a regular basis.”

Given the Arizona law, it is worth taking a moment to review what courts and state legislatures have said about rights to illegal workers to compensation, including workers compensation. Below is a very short article. I have posted workers compensation benefit entitlement before. This article addresses various kinds of compensation.

Note that federal law makes it a crime to hire illegal workers. It does not make it a crime for an illegal person to seek or obtain work. The Arizona's criminal provision for seeking or obtaining work was struck down by the federal judge.

The article:

According to the 2000 U.S. Census, there are 31 million foreign-born people living in the U.S. — 11.1 percent of the population, and a 57 percent increase from the 1990 census. The census further found 7.5 million undocumented individuals in the U.S., with almost 3 million undocumented aliens in California and Texas alone.

Other sources provide even higher figures. According to the Department of Homeland Security, the number of undocumented individuals in the United States is 8-12 million, while the Center for Immigration Studies puts the count at 10-11 million. Almost all sources agree that there are 700,000 to 1 million illegals entering annually, according to Richard A. Watts, an attorney in the Atlanta law firm of Swift, Currie, McGhee & Hiers.

These numbers mean that many employers and HR professionals who deal with workers’ compensation will eventually have to handle claims filed by undocumented workers, Watts told attendees at a July session of the SEAK National Workers’ Compensation and Occupational Medicine Conference.

Federal Law Makes It Illegal to Employ Undocumented Workers

The Immigration Reform and Control Act of 1986 (IRCA) makes it illegal to “hire or recruit or refer for a fee” an unauthorized alien. It is illegal under the act to knowingly employ an authorized worker or to “continue to employ” a worker you later find to be unauthorized.

If an employee’s undocumented status becomes clear once he or she has filed for workers’ compensation benefits, what then are your obligations under IRCA as well as under state workers’ compensation laws? Watts asked the conference audience.

Although, he said, federal law clearly prohibits hiring these workers, once they become injured on the job, several states explicitly allow them to recover workers’ compensation benefits. Statutes in Florida, New York, Texas and Utah permit the recovery of benefits by undocumented workers. In a number of other states, including Connecticut, Georgia, Louisiana, Nebraska, Ohio, Oklahoma, New Jersey, North Carolina and South Carolina, courts have held that compensation benefits cannot be denied solely because the injured worker is undocumented.

Arguments Made to Deny Benefits

Many state workers’ compensation acts define an employee as “anyone under contract for hire or apprenticeship.” Illegal aliens cannot legally contract. Therefore, an argument can be made, Watts said, that compensation benefits should be denied because illegals are not subject to the act in that they do not meet the definition of “employee.”

This argument has been successful in courts in Arizona, Virginia and Wyoming, Watts noted, although Virginia subsequently changed its law to explicitly include illegal aliens as employees. It has not been successful in several states, including Connecticut, Georgia, Louisiana, Ohio, Oklahoma and Texas.

Another argument, Watts said, is based on the fact that many states’ workers’ compensation statutes deny benefits if they have been fraudulently obtained. Attorneys have argued, largely unsuccessfully, that because undocumented workers have committed fraud in obtaining their jobs, they should be disqualified from obtaining benefits.

Benefits also may be denied in many states if a worker is hurt during the commission of a crime. Attorneys have argued that, because providing false documentation to get a job is a crime, undocumented workers should be denied benefits if they are injured on the job they illegally obtained. But courts have not accepted this argument either, Watts noted.

Supreme Court Case Has Little Impact

In 2002, the U.S. Supreme Court decided in Hoffman Plastics v. NLRB (535 U.S. 137) that an undocumented worker who was terminated from employment because of his union activities was not entitled to back pay, even though the employer had violated the National Labor Relations Act in discharging him. The court ruled that IRCA would be violated by awarding “back pay to an illegal alien for years of work not performed, for wages not lawfully earned, and for a job obtained in the first instance by a criminal act.”

Federal courts subsequently applied the Hoffman decision to deny claims for back pay brought by undocumented workers under the Americans with Disabilities Act and Title VII, but ruled that Hoffman was not applicable to an undocumented worker’s claim for unpaid overtime under the Fair Labor Standards Act (FLSA). In the FLSA context, the employee had already earned the wages, the court reasoned, and so could not be denied based on immigration status.

In the workers’ compensation area, an argument based on Hoffman has failed in six states (California, Florida, Georgia, Maryland, Minnesota and Pennsylvania), Watts said, with the courts reasoning that the situation is more like the one under the FLSA — the employee cannot be denied the benefits because he or she had already earned them by virtue of working for the employer prior to incurring the injury.

Immigration issues are “hot” right now, Watts concluded, and states may consider legislation restricting undocumented workers’ rights to collect workers’ compensation benefits. A bill that would have required an individual hurt on the job to prove that he or she was legally employed passed the Ohio Senate in the last legislative session but failed to pass the House, he noted.

The Migration Policy Institute issued an brief analysis of Judge Bolton’s ruling against portions of the Arizona law, Senate Bill 1070. Read below:

Breakdown of the Ruling

Bolton did not enjoin all of SB 1070, which the federal government had requested. Instead, she found that four key provisions warranted a preliminary injunction for two reasons: the government's arguments that federal law preempted SB 1070 were likely to prevail at the full hearing on the merits, and the government was "likely to suffer irreparable harm" if they were not enjoined.

The four sections Bolton stopped are

* requiring local law enforcement officers to ask about the immigration status of an individual stopped by the police if an officer has a "reasonable suspicion" that the person is an unauthorized immigrant; requiring officers to verify the immigration status of anyone arrested before releasing that person from detention
* making it a state crime for immigrants to fail to carry proof of their immigration status
* making it a state crime for unauthorized immigrants to solicit or perform work
* allowing police officers to arrest without a warrant anyone suspected of having committed a public offense that renders him or her removable from the United States.

Specifically, Bolton found that the provisions related to law enforcement's mandatory inquiries into immigration status and the warrantless arrests of removable immigrants would impose a "significant burden" on legal residents, many of whom could be wrongfully arrested or detained for extended periods if they could not produce proof of their immigration status.

The judge also noted that the task of determining whether an immigrant has committed a crime rendering him or her removable is a task of "considerable complexity," and state and local law enforcement officers do not receive adequate training to be able to make such a determination.

She found that the portion of SB 1070 making it a state crime for unauthorized immigrants to solicit or perform work contradicted the federal government's carefully balanced system of penalties for unauthorized employment.

In agreeing with the federal government that federal law likely preempted four sections of SB 1070, Bolton found that implementing the four provisions would require the federal government to shift resources away from law enforcement priorities.

Finally, Bolton also recognized that allowing SB 1070 to take effect would undermine the ability of the United States to "speak with one voice" on immigration matters, with implications for a uniform national foreign policy.

Bolton declined to block the various other provisions of SB 1070, finding that they were not likely to be deemed preempted during a full hearing on the law. These provisions include

* prohibiting Arizona officials, agencies, and subdivisions from limiting the enforcement of federal immigration law
* making it a crime to hire day laborers if the practice impedes normal traffic flows
* making it illegal to transport, conceal, or harbor unauthorized immigrants
* amending the definitions of crimes of human smuggling.

Ruling in Context

Many immigration experts and constitutional scholars have argued the lawsuit against Arizona was necessary to reassert the federal government's authority to set a national immigration policy.

Since the 1800s, courts have held that regulating immigration policy is primarily a federal responsibility, though the Supreme Court has recognized that not every state law dealing with immigrants is "a regulation of immigration, and thus per se preempted."

Continue reading "Another analysis of the Bolton ruling on the Arizona Law" »

Below is a good summary of the provisions of Arizona’s Senate Bill 1070 that Judge Susan Bolton of the United States District Court for the District of Arizona ruled unconstitutional. Her reasoning was largely but not only focused on the matter of federal preemption.

Summary

Senate Bill 1070 took effect in Arizona on July 29, 2010. Judge Susan Bolton only blocked certain parts of the bill from taking effect with the rest of the bill. Such a legal challenge and outcome was fully anticipated by the drafters of SB1070, who made certain aspects of the bill severable, or able to be separated, without destroying the entire bill. The US Department of Justice, the adversary to SB1070 in this instance, specifically chose certain aspects of the bill to challenge, leaving other aspects unopposed. Some of the most important aspects of SB1070 that remain in effect or fully enforceable by officers in Arizona are as follows:

* Provision allowing residents of the state to sue any state official or agency that restricts enforcement of federal immigration law to any extent less than the maximum allowed by federal law;
* Creating a crime for stopping a vehicle to pick up day laborers if the stopping creates an impediment to normal movement of traffic;
* Creating crimes for intentionally or knowingly employing unauthorized aliens; and
* Transporting or encouraging unlawfully present aliens to come to Arizona.

Interestingly, law enforcement officers and public employees are caught in a catch 22 situation regarding their role in Arizona's immigration scheme. Specifically, all agencies of the State of Arizona are required to carry out federal law in regard to federal immigration rules or risk being sued. However, it is reasonable to believe that most employees of the state of Arizona are not experts in Federal Immigration law, leaving such agencies and employees potentially open to suit for actions they do not know are unlawful.

The following are aspects of the bill that have been enjoined, or stopped from enforcement, by the federal court:

* Requirement that under reasonable suspicion of unlawful presence in the United States, that police officers make a reasonable efforts to ascertain the immigration status of the person, and ascertain the immigration status of a person upon release from arrest;
* Creation of a crime for failure to apply for or carry immigration papers;
* Create a crime for an unauthorized alien to solicit, apply for or perform work; and
* Authorize the warrantless arrest of a person where there is probable cause to believe the person has committed a public offense that makes the person removable (formerly called deportable) from the United States.

Continue reading "What Judge Bolton ruled what was unconstitutional in the Arizona law" »

According to Risk & Insurance Magazine, the Ohio Senate approved a bill aimed at preventing illegal immigrants from collecting workers compensation benefits.

Lawmakers voted 21-12 to pass S.B. 238, sponsored by Sen. Bill Seitz, R-Cincinnati. Ohio law permits minors and aliens to receive workers' comp benefits but does not have statutory language in place to block illegal immigrants from receiving awards. Language already exists blocking undocumented workers from collecting unemployment and Medicaid payments. Seitz noted that the Bureau of Workers' Compensation doesn't require injured employees to document their status prior to receiving benefits.

Under the legislation, injured employees would be required to prove that they are legally permitted to work in the country by providing a visa or birth certificate.

The Congressional Budget Office builds from the Current Population Survey profiles of the foreign born work force as growing more rapidly than the native born and as forming an hour glass demographic shape. People born in other countries represent a substantial and growing segment of the U.S. labor force—that is, people with a job or looking for one. In 2009, 24 million members of the labor force—more than one in seven—were foreign born, up from 21 million in 2004.

Growth of the foreign born labor force since 1994:

In 2009, 24 million members of the labor force were foreign born, up from 21 million in 2004 and 13 million in 1994. Between 1994 and 2004, both the native-born and foreign-born labor forces increased by about 8 million. That relationship was different between 2004 and 2009: Over that period, the native-born labor force grew by 4.3 million, while the foreign-born labor force grew by only 2.5 million.
Although the growth of the foreign-born labor force slowed appreciably from the 1994–2004 period to the 2004–2009 period, it still was considerably faster than the growth of the native-born labor force.

The average annual growth of the foreign-born labor force slowed from about 5.2 percent to about 2.2 percent between the two periods. In contrast, that rate for the native-born labor force was less than 1 percent in each of the two periods.

The composition of the foreign-born labor force also changed between 1994 and 2009. Although workers from Mexico and Central America constituted a minority in the foreign-born labor force during that period, their number grew at a faster rate than did the number of workers from the rest of the world. The total size of the foreign-born labor force increased by 11 million. Of that number, 5 million were from Mexico and Central America, and 6 million were from the rest of the world—corresponding to average annual growth rates of 5.0 percent and 3.7 percent, respectively. As a result, the share of the foreign-born labor force from Mexico and Central America increased from 36 percent in 1994 to 40 percent in 2009

The hour glass shape of the foreign born worker population:

Hispanic working immigrants are less educated, and non-Hispanic workers better educated than native Americans.

Those born in Mexico and Central America are constituting an increasingly large share of the least educated portions of the labor force. For example, in 2009 they made up 64 percent of labor force participants with at most an 8th grade education—a figure that was 58 percent in 2004.

On average, the weekly earnings of men from Mexico and Central America who
worked full time were just over half those of native-born men; women from Mexico and Central America earned about three-fifths of the average weekly earnings of native-born women.

Foreign-born workers who came to the United States from places other than Mexico and Central America were employed in a much broader range of occupations. They were more than twice as likely as native-born workers to be in fields such as computer and mathematical sciences, which generally require at least a college education. Their average weekly earnings were similar to those of native-born men and women.

The Congressional Research Service recently issued aa legal analysis of the Arizona state law authorizing enforcement of criminal laws regarding unauthorized immigrants (SB 1070, as amended by HB 2162). The analysis is focused on the Federal preemption question but also addresses the civil rights aspects of racial profiling.

This thoughtful analysis notes that “the most serious preemption arguments likely exist where state law attempts to reach past traditional police powers to regulate matters closely related to the entry and removal of aliens from the United States, and the conditions of their lawful presence within the country. State laws addressing such matters appear most susceptible to preemption challenges, as federal law is arguably intended to wholly occupy this field.”

The analysis concludes that it is difficult in the absence of information about how the Arizona law is implemented to determine whether it is unconstitutional based on Federal preemption.

The New York Times reports that “The Obama administration has replaced immigration raids at factories and farms with a quieter enforcement strategy: sending federal agents to scour companies’ records for illegal immigrant workers.”

The article goes on:

While the sweeps of the past commonly led to the deportation of such workers, the “silent raids,” as employers call the audits, usually result in the workers being fired, but in many cases they are not deported.

Over the past year, Immigration and Customs Enforcement has conducted audits of employee files at more than 2,900 companies. The agency has levied a record $3 million in civil fines so far this year on businesses that hired unauthorized immigrants, according to official figures. Thousands of those workers have been fired, immigrant groups estimate.

Employers say the audits reach more companies than the work-site roundups of the administration of President George W. Bush. The audits force businesses to fire every suspected illegal immigrant on the payroll— not just those who happened to be on duty at the time of a raid — and make it much harder to hire other unauthorized workers as replacements. Auditing is “a far more effective enforcement tool,” said Mike Gempler, executive director of the Washington Growers League, which includes many worried fruit growers.

Continue reading " Obama’s “silent” raids to enforce immigrant laws" »

The Department of Justice filed suit on July 6 to prevent implementation of Arizona's new law to mandate state and local police involvement in immigration law enforcement (S.B. 1070). Below is the announcement by DOJ of this action:

Citing Conflict with Federal Law, Department of Justice Challenges Arizona Immigration Law

WASHINGTON - The Department of Justice challenged the state of Arizona’s recently passed immigration law, S.B. 1070, in federal court today.

In a brief filed in the District of Arizona, the Department said S.B. 1070 unconstitutionally interferes with the federal government’s authority to set and enforce immigration policy, explaining that “the Constitution and federal law do not permit the development of a patchwork of state and local immigration policies throughout the country.” A patchwork of state and local policies would seriously disrupt federal immigration enforcement. Having enacted its own immigration policy that conflicts with federal immigration law, Arizona “crossed a constitutional line.”

The Department’s brief said that S.B. 1070 will place significant burdens on federal agencies, diverting their resources away from high-priority targets, such as aliens implicated in terrorism, drug smuggling, and gang activity, and those with criminal records. The law’s mandates on Arizona law enforcement will also result in the harassment and detention of foreign visitors and legal immigrants, as well as U.S. citizens, who cannot readily prove their lawful status.

Continue reading "DOJ sues to void new Arizona immigration law" »