The Feds crack down on restaurants

This is something that the Democrats don’t want to publicize and the Republicans want to overlook: The Obama Administration has gotten very tough with employers who hire illegal workers. According to the NY Times, “Under a policy that went into effect in April 2009, the Obama administration is taking a much tougher stance on employers who hire illegal immigrants than any administration in decades. Enforcement agents have subjected businesses across the country to much greater scrutiny, using tactics that were almost nonexistent until two years ago. Federal officials said they expected to announce record numbers of investigations and fines by the end of the year. As of July 31, Immigration and Customs Enforcement, an arm of the Department of Homeland Security, had announced investigations of 2,073 businesses so far this year, outpacing the 1,461 conducted in all of 2009. “
In an article published on September 8, the NY Times reports how aggressive and disruptive the Administration’s policy of enforcement has become:
Immigration Crackdown Steps Into the Kitchen
By Sarah Kershaw
The New York Times, September 8, 2010
For a man facing the possibility of up to 30 years in prison, almost $4 million in fines and the government seizure of his small French restaurant here, Michel Malecot has an unusually jovial and serene air.
During lunch recently, he walked around the French Gourmet, his 45-seat restaurant, bakery and catering company in the city’s Pacific Beach neighborhood, hugging his regular customers and planting a kiss on each cheek, before meandering back into the sprawling kitchen to make himself a herring baguette with butter.
‘Serve this with warm potatoes,’ Mr. Malecot said, ‘and c’est bon.’
An immigrant from the South of France, he came here in 1972, settling in San Diego because he said the climate reminded him of home. And now it is the knotty issue of immigration that has made him a local cause célèbre, thrust him into one of the nation’s most contentious debates, jeopardized his future and sent a current of fear through the $550-billion-plus restaurant industry.
In April, Mr. Malecot, 58, was indicted by a federal grand jury on charges of illegally hiring 12 undocumented immigrants and, in what prosecutors portray as a brazen deception, continuing to employ them after learning that they were in the country illegally. He pleaded not guilty. Now, if convicted, he faces the possibility of forfeiture of the restaurant building, along with an adjacent rental property, Froggy’s Bar. Legal experts say it would be an exceptionally stiff punishment, but one that could be a sign of things to come for an industry that is one of the nation’s largest employers of immigrants.
‘They’re using a body of law intended for drug dealers and money launderers and going after an iconic bakery and philanthropic business,’ said Jot Condie, the president of the California Restaurant Association, which has 22,000 members. ‘If their strategy is to get the attention of the industry, mission accomplished.’

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A brief overview of compensation rights of illegal workers

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.

Obama’s “silent” raids to enforce immigrant laws

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.

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ICE targetting five states

Back blogging after an absence…Five states, Louisiana, Mississippi, Alabama, Arkansas, and Tennessee, are targeted by the United States Immigration and Customs Enforcement (ICE) for a workforce inspection.
One hundred and eighty employers received notices that ICE plans to inspect hiring records to determine whether they are complying with employment eligibility verification laws and regulations. The inspections are part of ICE’s increased focus on holding employers accountable for their hiring practices and efforts to ensure a legal workforce.
Thanks to Becki Shafer for this news item.

Expose of criminal behavior by immigration detention officials

Shocking, but not surprising, news about immigrant detention centers: officials have covered up deaths. The New York Times published an article which can only be called angry – angry at officials who had lied to its reporters in the past, even as these officials conspired to cover up the causes of death. “officials — some still in key positions — used their role as overseers to cover up evidence of mistreatment, deflect scrutiny by the news media or prepare exculpatory public statements after gathering facts that pointed to substandard care or abuse.”
I hope this leads to $100 million in payments to grieving family survivors.
The article in full:
Officials Hid Truth About Immigrant Deaths in Jail
By NINA BERNSTEIN
Silence has long shrouded the men and women who die in the nation’s immigration jails. For years, they went uncounted and unnamed in the public record. Even in 2008, when The New York Times obtained and published a federal government list of such deaths, few facts were available about who these people were and how they died.
But behind the scenes, it is now clear, the deaths had already generated thousands of pages of government documents, including scathing investigative reports that were kept under wraps, and a trail of confidential memos and BlackBerry messages that show officials working to stymie outside inquiry.

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Expanded auditing of American employers re: illegal workers

Expanded auditing by Feds of employer practices has become a facet of the Obama Administration’s approach toward enforcement of immigration laws. It has stepped aside from the show-boating by ICE during the Bush Administration. The New York Times ran an article last month on this evolving strategy.
Immigration Officials to Audit 1,000 More Companies
By NEIL A. LEWIS
Published: November 19, 2009
WASHINGTON — Immigration enforcement officials said Thursday that they were expanding a program for auditing companies that might have hired illegal immigrants and had notified 1,000 companies this week that they would have to undergo such a review.
John Morton, who heads Immigration and Customs Enforcement, known as ICE, announced the new initiative, saying it was part of the administration’s plan to deal with companies that hire illegal workers. “ICE is focused on finding and penalizing employers who believe they can unfairly get ahead by cultivating illegal workplaces,” Mr. Morton said.
He said that because the program was a law enforcement operation, he would not identify the companies that would undergo an audit except to say that they had been selected as a result of investigative leads and their connection to public safety and national security.
The language suggests the audits will affect private companies involved in infrastructure operations like gas and electric utilities and contractors on military bases but not retailers and manufacturers of nonessential goods.

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How do and will immigrants get health insurance?

The Migration Policy Institute has issued a thoughtful analysis of how immigrants, both legal and illegal, obtain health insurance.
Locally and nationwide, roughly two-thirds of working-age immigrants who are legal residents are insured, and more than one-third of illegal immigrants also have insurance.
The report says, “We estimate that half of LPRs [legal permanent residents] overall currently have employer coverage and one-third (3.9 million) are uninsured, accounting for 9 percent of the overall uninsured population. Almost all uninsured LPRs (93 percent) are adults, so the cost of providing coverage to uninsured LPR children (who are twice as likely as US-born children to be uninsured) would be quite low.”
What about illegal immigrants? The report says, “There are an estimated 12 million unauthorized immigrants in the United States. They are ineligible for Medicaid and other means-tested federal benefits, though hospitals may be reimbursed through Medicaid for providing emergency services. Notwithstanding the recent political furor over the issue, none of the pending legislative proposals would provide coverage for unauthorized immigrants. However, verification systems to screen them out of subsidies and the proposed insurance exchanges may be expensive and may have unintended consequences for US citizens and legal immigrants.
“Unauthorized immigrants are disproportionately likely to have low incomes, and although most of them work, they are even more likely than LPRs (46 percent) to work at small firms that do not provide insurance. As a result, most unauthorized immigrants (6 million working-age adults and 660,000 children) are uninsured, accounting for 15 percent of the overall uninsured. Yet it is not widely recognized that 31 percent of unauthorized immigrants (some 3.2 million working-age adults and 460,000 children) already have employer coverage.”
The executive summary of the report, Immigrants and Health Care Reform What’s Really at Stake? By Randy Capps, Marc R. Rosenblum, and Michael Fix Migration Policy Institute October 2009
The health care reform legislation being drafted in Congress holds the promise of delivering coverage to millions of uninsured people in the United States through Medicaid expansion, private insurance subsidies, and mandated employer coverage. The scope and success of reform, however, will be affected substantially by lawmakers’ decisions regarding the eligibility of legal immigrants for health benefits, and their approaches to screening out unauthorized immigrants. Their decisions will help determine how close Congress comes to its goal of reducing the ranks of the nation’s 46 million uninsured.
Despite high workforce participation rates, many immigrants (regardless of their legal status) are uninsured. Yet some proposals under consideration in Congress would deny core benefits to many legal immigrants. These proposals would leave many legal immigrants outside a reformed health care system, with costly spillover consequences for taxpayers, health care consumers, and providers.

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ICE says 17,500 people trafficked into the US each year

ICE estimates that 17,500 people a year are trafficked into the U.S. for exploitation. Here the AP reports on a new public awareness initiative:
Immigration officials target 14 US cities in campaign against human trafficking
November 10, 2009
BOSTON (AP) — Fourteen cities are being targeted in a new campaign aimed at alerting people about human trafficking, federal immigration officials have announced.
The “Hidden in Plain Sight” initiative, sponsored by U.S. Immigration and Customs Enforcement, features billboards highlighting “the horrors and the prevalence of human trafficking,” which the agency says is equivalent to “modern-day slavery.”
The words “Hidden in Plain Sight” are displayed on the advertisements with a toll-free number people can call to report situations where they believe people are being sexually exploited or forced to work against their will.
Cities in the new campaign are Atlanta; Boston; Dallas; Detroit; Los Angeles; Miami; Philadelphia; Newark, N.J.; New Orleans; New York; St. Paul, Minn.; San Antonio; San Francisco and Tampa, Fla.
Bruce Foucart, an ICE special agent in charge of New England, said officials hope the billboards persuade residents to report suspected cases to ICE or local law enforcement.
“It’s difficult to identify victims and it’s difficult for them to tell their stories,” said Foucart.
About 800,000 men, women and children are trafficked each year around the world and about 17,500 of them end up in the United States, according to ICE. Immigration officials say the victims are lured from their homes with false promises of well-paying jobs but are trafficked into the commercial sex trade, domestic servitude or forced labor.
Foucart said victims who cooperate with law enforcement are offered temporary status and can later apply to stay in the U.S. permanently.
Jozefina Lantz, director of New Americans services at Lutheran Social Services in Worcester, Mass., welcomed the new campaign and said the public is generally unaware that human trafficking is occurring near their homes.
“Often the victims get mistaken for undocumented immigrants,” said Lantz. “It’s not the same because these people were abducted from their homes and forced into trafficking.”
Lantz said her group has recently helped trafficking victims from Africa and South America.

Expose of private prisons for immigration violators

The Nov/Dec 2009 issue of the Boston Review contains an article by Tom Barry titled “A Death in Texas: Profits, poverty, and immigration converge.” Barry assiduously tracks the growth and performance of private prisons created and managed by private contractors to hold immigrants arrested for immigration violations. This is a must read and will be a factor in the upcoming push for immigration reform.
Excerpts:
Thus far, immigration prosecutions in 2009 outpace those of 2008 by 14 percent. Prosecutions are up 139 percent compared to five years ago, 459 percent compared to 1999, and 973 percent compared to 1989…….
Though speculative prisons come with no guarantees, all along the Southwest border—from Florence, Arizona to Raymondville, Texas—business is good. Since early 2003, the criminal justice and immigration enforcement systems have merged, breaking the longstanding tradition of treating immigration violations as administrative offenses and creating hundreds of thousands of new criminal aliens.
While the growth in immigrant detention is in part due to the country’s increased immigrant population, the shift in immigration policy away from regulation and toward enforcement, punishment, and deterrence is more significant. Unwilling to pass a reform bill that would effectively regulate immigration, Congress and the executive branch have turned to the criminal justice and penal systems.
New anti-immigrant laws and practices by ICE and CBP subject immigrants, legal or illegal, to double jeopardy, punishing them twice for the same offense. In 1996 the Republican majority in Congress led approval of three anti-immigrant and anti-crime laws that spurred INS to start cracking down on and deporting immigrants. These laws, together with the executive branch’s increased authority to devise repressive immigration procedures under the post-9/11 pretext of a war on terror, have created an enforcement regime in which noncitizen legal immigrants face immigration consequences (as well as criminal consequences) for past or present violations of criminal law. In other words, illegal immigrants and even noncitizen permanent residents may be jailed and deported for committing crimes or other offenses, whether violent or not. DHS and the Justice Department are not only combing the criminal justice system for legal and illegal immigrants to be detained and deported, but the departments are also working together to transfer illegal immigrants into federal courts and prisons.
Legal scholars have taken to calling this increasing merger of criminal and immigration law and the integration of the criminal justice and immigration systems “crimmigration.”
The private-prison industry’s executives are particularly upbeat about new criminal alien programs such as CBP’s Operation Streamline and ICE’s Secure Communities. GEO Chairman George Zoley told Wall Street analysts in a July 2009 investment conference call: “The main driver for the growth of new beds at the federal level continues to be the detention and incarceration of criminal aliens.” CCA’s Chief Financial Officer, Todd Mullenger, emphasized the importance of programs such as Operation Streamline to prison profits in a recent investment conference call:
Border Patrol has consistently indicated from the planning stage of the initiative to the present that Operation Streamline will require additional detain beds due to increased prosecution and length of stay anticipated by the initiative.
Operation Streamline was launched in 2005 as a pilot project of the Del Rio sector of Texas and extends east to the southern Rio Grande Valley and west to Yuma, Arizona. It is part of a national immigrant crackdown that CBP and ICE variously call “enhanced enforcement” and “zero tolerance.” The program directs Border Patrol agents to turn captured illegal border crossers over to the Marshals Service for prosecution, breaking with the usual practice of simply returning Mexican immigrants to Mexico or releasing non-Mexican immigrants with an order to appear in immigration court.

E-Verify push: update

The Obama administration is requiring federal contractors to use e-Verify as of September, and Congress is looking at a universal requirement for all employers. The Chamber of Commerce and other industry groups are fighting universal application because, they argue, of the burdens on small businesses and delays in response by the Department of Homeland Security to resolving problems with verification.
‘”>Below is a useful overview of the situation as of this week:
Momentum builds in Congress for mandatory worker verification
By Kent Hoover
The Triangle Business Journal (NC), August 3, 2009
Momentum appears to be growing for legislation that would require all employers, not just federal contractors, to use the E-Verify system to confirm that their employees are eligible to work in the United States.
E-Verify is a Web-based system that allows employers to check the Social Security and visa numbers submitted by workers against government databases. More than 137,000 employers now use the system, which approves 97 percent of workers in a few seconds.
Beginning Sept. 8, federal contractors will be required to use E-Verify to confirm that new hires and current employees working on federal contracts are authorized to work in the U.S. The requirement also will apply to most subcontractors.
Many members of Congress want to expand E-Verify to all employers, as a way to end the ‘jobs magnet’ for illegal immigration. This ‘could open up thousands of American jobs to workers with legal status,’ said Rep. Heath Shuler, D-N.C.
Shuler is the lead House sponsor of the Secure America Through Verification and Enforcement Act, a bill that would expand E-Verify to all employers over four years. The legislation also would increase the number of Border Patrol agents, interior enforcement officials and immigration judges.

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