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Because of methodological problems in designing studies of undocumented worker participation in the labor market, the research findings of any one particular study or set of studies have limited usefulness for reaching conclusive determinations regarding the degree of economic impact of undocumented workers. Nevertheless, the number of studies and their scope are indicative of the serious national concern over the undocumented worker issue.
The Commission concludes, on balance, that it should be recognized that the presence of undocumented workers in the labor market does have an adverse impact on the opportunities for employment of a number of citizens and legal residents.
training programs, and for taking full advantage of technological progress in the area of law enforcement.
This Commission believes that our nation has the capacity of initiating a program of stepped-up law enforcement in the immigration area and at the same time conducting it in such a manner as to protect the civil rights of all persons who may be the targets of such a program.
We recognize that this is not a good time to recommend the expansion of the resources of any governmental program. Nevertheless, a substantial investment in an expanded and improved law enforcement program by the Immigration and Naturalization Service will produce benefits in the form of increased job opportunities for both citizens and legal residents that will far outweigh the costs.
A Positive Response to the
The Federal Government, in the judgment of this Commission, should do everything possible to reduce significantly the number of undocumented workers in our domestic labor market, particularly in those areas where they have an adverse impact on the employment opportunities of citizens and legal residents.
First, the Commission believes that there should be a vigorous enforcement of the Fair Labor Standards Act. It is alleged that some employers employ undocumented workers instead of legal resident aliens or citizens because they know that the fear of detection will deter undocumented workers from filing complaints relative to poor working conditions. An effective enforcement of the Fair Labor Standards Act can help to reduce the attractiveness of such a choice and at the same time help to ensure that neither citizens nor aliens are subject to unfair working conditions.
Second, we believe that there must be a substantial increase in the resources made available to the Immigration and Naturalization Service and to other agencies that may assume responsibilities in the future for the enforcement of immigration laws.
Such increased resources should be utilized not only for the purpose of expanding, for example, the Border Patrol but for conducting vigorous recruiting programs consistent with equal employment opportunity objectives, for the improvement of
Foreign Policy Can Be an Important Factor in Dealing with the Problem
Third, we cannot afford-because of its seriousness—to turn our backs on the foreign policy aspects of the problem. In the 1942-47 period, for example, a U.S.-Mexican executive agreement played a major part in determining the role that Mexicans would play in the U.S. labor market. Both governments were involved in the implementation of the agreement.
It is recognized that the current situation is very different from the situation that prevailed in both countries in those years. Nevertheless, working agreements to improve the regulation of the population flow between the United States and the major source countries for undocumented workers could help to get at the root of some of our current difficulties. The complexities and difficulties involved in developing such working agreements should not be used as excuses for failing to try to work them out if we are really convinced that the number of undocumented workers continuing to come to this country is having an adverse impact on the economic well-being of many of our citizens and legal residents.
Efforts to negotiate such agreements would have to be made simultaneously with efforts to deal with other outstanding issues between the United States
Immigration, pp. 59-60. See also the discussion of the "segmentation hypothesis" in note 4. ? For a discussion of some methodological problems which generally confront researchers studying undocumented workers, see Bureau of the Census, Preliminary Review.
• 29 U.S.C. 88201-219 (1976 and Supp. I 1977). • For a more detailed discussion of the bracero program, see Richard B. Craig, The Bracero Program (1971).
and the other nations, the resolution of which would represent gains for all parties to the negotiations.
At a recent conference on the undocumented worker issue sponsored by the Community Services Administration, immigration experts who participated in the conference, although divided on other aspects of the undocumented worker issued, reached a "significant consensus" that:
The authors of a very recent study on American immigration have suggested that the formation of a North American Economic Union, whose members would include the United States, Mexico, and Canada, might serve as a vehicle for helping to solve the undocumented worker problem. The relationship between such a union and the immigration problem is described by the authors in the following manner:
Mexican President Jose Lopez Portillo has said repeatedly that Mexico wishes to export goods, not workers. It is time that the United States realized that it will either import Mexican goods or it will have to accept the importation of Mexican workers. 11
In brief, this Commission believes that a determination to approach the foreign policy aspect of the undocumented worker problem with a sense of urgency could result in our really getting at some of the “root” causes of the problem. The approaches outlined above can be implemented without jeopardizing our civil liberties.
whatever policies are eventually formulated, they should be developed jointly with Mexico. Indeed, it would probably be even more productive and realistic to construct policies multilaterally with those nations which have evidenced significant outmigration to the United States. Finally, policies should address both the causes and the consequences of migration. Looking only at the impact of clandestine aliens once they are in the United States while failing to deal with the factors that have compelled them to migrate would do little or nothing to alleviate the problem or achieve equitable and
effective solutions. 10 This "consensus” points up the desirability of having working agreements designed to regulate the flow of persons from other countries which are based on policies designed to eliminate some of the causes for people desiring to come to this country. For example, a portion of that part of U.S. foreign economic policy which provides assistance to other countries could and should be targeted to help create jobs and improve living conditions for persons living in other countries who now believe that their only hope is to migrate to the United States. This objective could and should be kept in mind as the United States participates in the formulation and financing of programs sponsored by the United Nations, the World Bank, and the Inter-American Development Bank.
10 Latin American Institute of the University of New Mexico, The Problem of the Undocumented Worker, pp. 2–3. " Ehrlich, Bilderback, and Erhlich, The Golden Door, p. 330. 13 California and Connecticut are among the States that have enacted employer sanctions laws. The Connecticut statute provides:
$31-51k. Employment of alien not entitled to residence. (a) No employer shall knowingly employ an alien who is not entitled to
lawful residence in the United States. Conn. Gen. Stat. Ann. 831-51k (West Supp. 1976). The California statute provides:
$2805. Alien employment; adverse effect on resident workers; violation. (a) No employer shall knowingly employ an alien who is not entitled to lawful residence in the United States if such employment
would have an adverse effect on lawful resident workers. Cal. Labor Code $2805 (West Supp. 1979). 13 However, employers who engage in conduct or activity beyond that considered “usual and normal practices incident to employment" may be guilty of "harboring” an alien under $274 of the Immigration and Nationality Act, 8 U.S.C. 81324 (1976). See United States v. Smith, 112
F.2d 83 (2d Cir. 1940) (involving a harboring conviction under 8 U.S.C.
Sec 5. (a) Section 274 of the Immigration and Nationality Act (8
ingly engage in a pattern or practice of hiring undocumented workers be subject to fines of $1,000 for each alien unlawfully in their employ and to court injunctions ordering them to refrain from such a practice. Violations of the injunction would subject an employer to criminal contempt citations and possible imprisonment. Employers would be able to defend against charges of unlawful employment of undocumented workers by presenting evidence that they examined certain documents which attested to the lawful residency of those employees. Regulations to be issued by the Attorney General after passage of the proposed legislation would describe the documents that an employer could examine to verify the legal status of an employee.
This legislative proposal did not include a recommendation for a national identity card. The analysis which follows is based on the assumption that such a card would not be available. The subsequent section addresses the issues that would be presented if a national identity card were adopted.
The enactment of employer sanctions legislation would constitute unsound public policy for a number of reasons. Under such legislation, employers would be required to make determinations as to whether an applicant had violated the Immigration and Naturalization Act by entering the country without inspection, overstaying his or her visa, or violating the terms of the visa and to refuse to employ any applicant who had so violated the immigration laws. If employers failed to take such action, they would be in violation of the law and subject to civil or criminal penalties.
It is true, of course, that employers are already legitimately subjected by Federal law to many requirements. The Fair Labor Standards Act, for example, compels them to pay their employees a minimum wage and compensate them at a higher rate for overtime work. The income tax laws compel them to withhold a portion of most employees' earnings and to report each employee's total earnings to the government, and Title VII of the Civil
Rights Act of 1964 compels them to refrain from unlawful discriminatory employment practices.
An employer sanctions law would be unique, however, in that its purpose would not be merely the regulation of the employer's conduct, but the regulation-by way of the employer-of the prior, nonemployment-related conduct of current or prospective employees. It would compel the employer to assume an enforcement role for the INS, by judging whether an applicant had violated the immigration laws and punishing him or her by denial of employment if he or she was "found guilty.” Such an approach would raise troubling questions about the capacity of private employers to undertake law enforcement responsibilities, as well as about the impact that such a system would have on jeopardizing due process rights of applicants.
The effectiveness of an employer sanctions law is also questionable. In testimony before a subcommittee of the House Appropriations Committee, Attorney General Benjamin Civiletti expressed doubts that such a law would accomplish its purpose, and concern that it might prove largely unenforceable, in the following colloquy:
Mr. Alexander: ...Would the Attorney General entertain a recommendation to discuss the possibility of imposing criminal sanctions on Americans who knowingly and with their knowledge and consent violate the law by illegally hiring aliens in this country? Mr. Civiletti: It is easy to say yes, sure, seriously consider it. Attorney General Bell, I think, proposed such a law to the Congress in 1977. At least in the judgment made at that time, it seemed to be of potential assistance in the illegal immigration problem. I am not so sure. I am not so sure that it is not superficial, and that the job of enforcement against American citizens for hiring people, on representations by individuals that they are lawfully here as residents or relatives or have a stay permission or whatever, would be outrageously difficult. Also, it would not be very productive, because unless we can enforce it with a very substantial investigation
thereafter been employed by the employer, except for such alien whose status was adjusted or application for adjustment was pending pursuant to the terms of section 2 or section 4 of the Alien Adjustment and Employment Act of 1977. (3) Upon determination that cause exists to believe that an employer has engaged in a pattern or practice of employing aliens in violation of this subsection, the Attorney General shall bring actions for both civil penalty and injunctive relief in the United States district court in any district in which the employer is alleged to have violated this subsection, or in any district in which the employer is found or transacts business.
(4) Proof by an employer with respect to any person employed by him that, prior to the person's employment, or, in the case of a person hired prior to the effective date of this subsection, as soon practicable but in any event within ninety days of such effective date, he saw such documentary evidence of eligibility to work in the United States as the Attorney General has by regulation designated for that purpose shall give rise to a rebuttable presumption that the employer has not violated this subsection with respect to that particular person.
and prosecution force, then the economic marketplace will prevail. The needs and ebbs and flows in the marketplace are going to attract (undocumented workers) to the small businessmen, medium businessmen, wives hiring gardeners or maids, the less desirable jobs. Many of the farming migrant worker jobs are going to be filled and we are going to have a substantial area of the law which will be violated and not enforced.
Secondly, there's a question of whether Americans of Hispanic national origin would be hired at all where employers are unsure the documentation of citizenship presented is a forgery and fear that they might be unknowingly violating the law. Many employers might decide to take no chances and refuse to hire applicants of Hispanic origin. Again, this would constitute national origin discrimination. The agency is also of the opinion that this kind of discrimination would be hard to eradicate.17
I agree with Congressman (Jack) Hightower (of Texas), there is nothing more debilitating to the fiber of the country and the citizens than having laws on the books which are not obeyed and violations which are not investigated, prosecuted, and enforced. So, I have significant reservations as to an across-the-board employer sanctions law as a single effective tool in this problem.15
Members of the business community, who would be the ones penalized for infractions of the law, also believe that discriminatory employment practices would be an inevitable result of employer sanctions. Typical of the concern of employers that discrimination would occur is the congressional testimony of Bernard Z. Brown, president of the Coalition of Apparel Industries in California:
Of even greater concern, however, is the danger that the passage of employer sanctions laws could lead to discriminatory employment practices involving especially members of the Spanish and Asian heritage communities. 16 In testimony before the Commission, Daniel E. Leach, Vice Chair of the Equal Employment Opportunity Commission, agreed that those fears are well-founded:
Any statute which prohibits an employer from hiring an undocumented alien, with the necessary sanctions for violation, places a tremendous burden upon the employer. An employer who is concerned with compliance would of necessity view every applicant who fits the physical stereotype of an (undocumented worker] as a potential danger. Thus, in southern California, brown skinned applicants or current employees would be regarded with considerable suspicion. This can hardly be viewed as a healthy situation. In an age that encourages desegregation and acceptance among all races, we are setting the stage for the most blatant form of discrimination. 18
What concerns the Equal Employment Opportunity Commission is that if legislation is enacted with employer sanction provisions as proposed in S.2252 (the Carter administration proposal] in the 95th Congress, employers might act in certain ways which would have the effect of job discrimination on the basis of national origin.
First of all, employers perhaps will want to make prehire inquiries to ensure that they are not hiring undocumented aliens. While Title VII does allow prehire inquiries in some instances, the likelihood is that employers will ask some applicants, those of Hispanic origin, and not others to show proof of citizenship. This disparate treatment of certain groups may be a violation of law.
Smaller businesses would be likely to experience greater enforcement difficulties under an employer sanctions law, as many of those employers are illequipped to screen employees for the verification of immigration status. Representatives of the business community in Los Angeles testified that the "average employer" is unable to verify whether immigration documents are bona fide19 and that small employers do not have the resources to determine er an alien is authorized by the U.S. Attorney General to accept employment.24
15 Hearings Before the Subcommittee on the Departments of State, Justice,
hearing, Washington, D.C., Nov. 14–15, 1978, pp. 40-41 (hereafter cited as
legal immigration status "without really treading into the discriminatory questioning.”20 Smaller employers, who already have difficulties in dealing with the complexities of Federal equal employment opportunity law, would most likely be the least equipped to assume employment screening responsibilities without causing increased employment discrimination. According to EEOC Vice Chair Daniel Leach:
A former INS employee, with 32 years of service, questioned whether employers could develop the necessary expertise in immigration law to screen employees in order to verify their immigration status correctly.25
Although interpreting immigration law to determine whether an employee has lawful status is an extremely difficult task, other employment screening duties could be just as difficult. Even the mere inspection of a bona fide immigration document can create difficulties for an employer. Explaining this problem, Leslie Frank, of the Los Angeles County Bar Association's Joint Committee on Aliens, testified:
the larger employers in the employment area generally-and I speak as an EEOC Commissioner operating under Title VII-larger employers are more sophisticated, have good advice, good counsel; they can afford of their costs. The smaller employer is perhaps where some of the problems in Title VII remain most severe: those that lack sophistication, don't understand the law, choose not to deal with the law. That's a problem for EEOC as it is. I'm sure it would be a problem and continue to be a problem with any legislation that's proposed in this area. 21
The complexities of the immigration laws make it highly unlikely that the question of legality of an individual's employment could be resolved merely by having the employer examine that person's documentation.22 To avoid denying employment to some who would be legally eligible to work, employers would have to do more than just examine documents; they would have to develop some expertise in different facets of immigration law.23 As the Association of Spanish Surnamed Americans, among others, has pointed out, an employer sanctions law:
Obviously, there will be a problem where certain employers are just going to be afraid. Today, there are aliens that have employment authorizations stamped on a form 1-94, which is an entry-deportation record, and even upon showing this form to an employer, they are afraid, because they are under the impression that they must see a green card. Many employers are surprised when they see it is blue; therefore, thinking a blue-green card, which has been the color since 1965, is a fraudulent document of one type or another, so they panic, and they are afraid and I think justifiably so. Therefore, I think there are many people that are going to be put in a position, if they look differently, if they sound differently, if their primary language is Spanish or Chinese or Thai or whatever, chances of an employer hiring them may be somewhat difficult, and I think through that, that (there) could be many discriminatory practices which on the part of the employers are not at all intentional, and somewhat incumbent upon this type of legislation.26
wrongfully and unfairly requires the employer to make determinations that can only properly be made by the Immigration and Naturalization Service. In effect, the employer is obliged to act
as an immigration officer in determining wheth-
13 One example would be the determination of whether a current or