Analysis of New DHS Worksite Enforcement Policies

May 3, 2009

May 1, 2009

ICE Raids Memorandum:

From: Peter Schey, President, Center for Human Rights & Constitutional Law

To: Interested Persons and Organizations

Subject: Summary and Analysis: DHS Issues Workplace Enforcement Policy

This memorandum provides background information on new work-site enforcement policies announced by the U.S. Department of Homeland Security on April 30, 2009, and provides a brief analysis of the shortcomings of the announced policy changes from the perspectives of U.S. workers, immigrant workers, and U.S. employers.

Background:

On April 30, 2009, the Department of Homeland Security (DHS) announced that it had issued new workplace enforcement guidance to the Immigration and Customs Enforcement (ICE). This guidance “reflects a renewed Department-wide focus targeting criminal aliens and employers who cultivate illegal workplaces by breaking the country’s laws and knowingly hiring illegal workers.” April 30, 2009 DHS Fact Sheet at 1. “Effective immediately, ICE will focus its resources in the worksite enforcement program on the criminal prosecution of employers who knowingly hire illegal workers in order to target the root cause of illegal immigration.” Id. (emphasis added).

However, “ICE will continue to arrest and process for removal any illegal workers who are found in the course of these worksite enforcement actions in a manner consistent with immigration law and DHS priorities. ICE will use all available civil and administrative tools, including civil fines and debarment, to penalize and deter illegal employment.” Id. (emphasis added).

DHS describes this new guidance as part of an “effective, comprehensive worksite enforcement strategy that must address both employers who knowingly hire illegal workers as well as the workers themselves.” Id. DHS claims a responsibility “to enforce the law and engage in effective worksite enforcement to reduce the demand for illegal employment and protect employment opportunities for the nation’s lawful workforce.” Id. The DHS statement cited statistics showing that of the 1,100 people arrested on criminal charges in 2008 following ICE workplace enforcement investigations, 135 were employers. Another 5,100 workers were charged with immigration violations.

The DHS statement said ICE would base upcoming investigations on tips from the public, reports from current and former employees and referrals from other law enforcement agencies. “ICE does not randomly target employers,” the statement said. “All investigations and arrests are based on specific intelligence obtained from a variety of sources.”

The specifics of the new guidelines were not released to the public. However, DHS has announced that ICE officers “will be held to high investigative standards….” Id. Specifically, DHS announced that “ICE will look for evidence of the mistreatment of workers, along with evidence of trafficking, smuggling, harboring, visa fraud, identification document fraud, money laundering, and other such criminal conduct.” Id. “ICE offices will obtain indictments, criminal arrest or search warrants, or a commitment from a U.S. Attorney’s Office (USAO) to prosecute the targeted employer before arresting employees for civil immigration violations at a worksite.” Id. at 1-2 (emphasis added).

DHS did not make any significant changes in the protections for the rights of the employees apprehended in these raids. “Existing humanitarian guidelines will remain in effect, impacting worksite enforcements involving 25 or more illegal workers. This reflects a change from the previous threshold of 150.” Id. at 2. The so-called humanitarian guidelines allow for the release of people who are the only caretakers of children, in raids involving more than 25 employees. The prior policy required at least 150 employees. The humanitarian exemptions also include pregnant women, nursing mothers or those with medical conditions or disabled or seriously ill relatives.

Lastly, DHS expressed an interest in continuing to work with employers and public and private partners. “DHS is committed to providing employers with the most up-to-date and effective resources to comply with our nation’s laws. DHS will continue to work with partners in the public and private sectors to maintain a legal workforce through training and employee verification tools like E-verify, which improve the accuracy of determinations of employment eligibility and combat illegal employment.” Id. at 2. DHS makes no similar commitment to work with immigrants rights advocates or labor organizations.

Matt Chandler, a DHS spokesman, said the guidelines reflect a new “department-wide focus” to target employers by prosecuting them criminally. “The prospect for employment in the United States continues to be one of the leading causes of illegal immigration,” said Mr. Chandler. “This is a clear message to the millions of businesses who play by the rules but find themselves competing against others who enter the illegal labor market that help is on the way.”

Reaction from stakeholders has been mixed. The Immigration Policy Center “is encouraged by the Department of Homeland Security’s (DHS) decision to refocus its worksite enforcement on those employers who are exploiting the broken immigration system. This is a good first step in realigning enforcement priorities. However, DHS’s ability to truly focus on abusive employers is limited by the fact that our current immigration system doesn’t provide immigrants or legitimate employers the protections and tools they need to comply with the law.” Michele Waslin, senior policy analyst for the American Immigration Law Foundation, stated that “It’s not just the immigration laws that are being violated,” she said. “There is only so far that these guidelines can take us, given the fact that we have a broken immigration system …”

The new rules were met with resentment from some business leaders. “The Obama administration doesn’t want to see any more employees walked out in handcuffs, but they want to see employers walked out in handcuffs,” said Norman Adams, a Houston businessman who founded Texans for a Sensible Immigration Policy, an organization made up largely of members of commercial construction companies. “The problem has got to be solved with legislation in Washington, D.C.,” Adams said.

Analysis:

1. Failure to address mass unconstitutional detentions:

The new DHS policy entirely skirts the fact that most ICE employment-site enforcement operations (raids) involve the unlawful temporary detention of the entire work force while ICE agents try to identify the immigrant workers using unauthorized documents to obtain work. These illegal group detentions are the subject of litigation in which we serve as plaintiffs’ counsel in the case entitled United Food and Commercial Workers v. Chertoff, Cv. No. 2-07CV-188-J (United States District Court for the Northern District of Texas). We also serve as legal counsel for one hundred and fourteen (114) U.S. citizens and lawful residents who have tendered claims for damages as a result of mass temporary detentions during the 2008 Micro Solutions Enterprises raid in Van Nuys, California.

We remain deeply concerned by ICE operations in which large numbers of U.S. citizen and lawfully present immigrant workers are detained without probable cause or warrants justifying such detentions.

2. Failure to address release and work authorization for detained workers:

While the ICE now considers some humanitarian factors when deciding whether to release apprehended immigrant workers on bond pending removal (deportation) hearings, the vast majority of apprehended immigrant workers are not adequately advised of their right to bond, or face unreasonably high bonds they cannot possibly afford, or are released on bond without employment authorization making it impossible for them to survive pending the outcome of their removal hearings unless they again engage in unauthorized employment.

A rational solution would be to release apprehended workers on reasonable bonds and permit them to be temporarily employed while their cases remain pending and unresolved.

3. Failure to address the economic concerns of businesses and lawful workers:

Work place raids not only violate the rights of US citizen workers through “group” detentions while agents try to sort out who the unauthorized workers are, they also unquestionably cause hundreds of millions of dollars in U.S. business losses that employers must somehow address, despite their full compliance with federal employee verification obligations.

Employers who are in full compliance with federal employee verification laws will often have employees using unauthorized documents (that employers cannot reasonable detect). It was foreseen when the employer verification requirements were enacted in 1986 (in the Immigration Reform and Control Act), that a booming cottage industry in the manufacture of false documents would evolve, and the exchange of documents among family members and friends needing to work to survive, would become endemic. Indeed, the U.S. Government Accountability Office (GAO) reports on the high percentage of unauthorized workers employed in certain industries throughout the U.S.

Despite employers full compliance with the law, following raids companies (i) loose their credit lines, (ii) due to the disruption of the raid are unable to meet orders, (iii) must reduce future orders, (iv) loose customers, (v) experience bad media coverage, (vi) have lawful workers quit out of fear of future raids, etc.

These economic losses encourage companies to consider (i) moving abroad, (ii) outsourcing their production, (iii) selling to foreign owners, (iv) lowering U.S. workers’ wages, or (v) increasing consumer prices.

The large economic losses suffered by companies in full compliance with U.S. employee verification laws in no way is justified by the miniscule number of undocumented workers apprehended each year in ICE work place raids (in 2008, for example, about 6,000 workers were arrested during ICE work place raids while experts estimate the number of undocumented immigrants in the U.S. at about 10-12 million).

4. Concentrate on labor law violators:

Virtually all experts agree that the most productive policy would involve a serious concentration of resources on abusive employers who flagrantly violate labor laws and occupational health and safety laws in the treatment of immigrant workers.

DHS should focus on collaborating with the U.S. Department of Labor and Occupational Safety and Health Administration, and similar state agencies, to investigate, prosecute, fine, and obtain injunctions against employers who consistently violating federal and state wage and hour and occupational health and safety laws in the treatment of immigrant workers.

To reduce the exploitation of immigrant workers, the DHS should review and revamp its rules to substantially increase the labor law protections afforded “temporary workers” lawfully in the U.S. See Close to Slavery: Guestworker Programs in the United States (Southern Poverty Law Center) (“The current program is shamefully abusive in practice, and there is almost no enforcement of worker rights.”) http://www.splcenter.org/news/item.jsp?aid=247

Finally, the Administration should adopt policies to reverse or ameliorate the decision in Hoffman Plastic Compounds, Inc. v. National Labor Relations Board, 535 U.S. 137 (2002), which held that federal immigration policy foreclosed the NLRB from awarding back pay to an undocumented worker who was terminated from his U.S. job in violation of the National Labor Relations Act. The best protection the U.S. Administration can provide for U.S. workers is to grant full rights under U.S. labor and occupational healthy and safety laws to all workers, regardless of immigration status, as this, more than anything else, will dissuade U.S. employers from having a preference for undocumented workers over U.S. citizen and lawful resident workers.