Editor’s note: This article continues Underground Construction’s series on the labor crisis facing many segments of the construction industry, which emphasizes the importance of education and training. See other recent articles in the series: 6 7]
Over the past several years, foreign-born workers have played an increasingly important role on most types of construction projects, including utility construction.
Many employers find immigrant employees to be extremely hard working, dependable and often willing to take difficult, low-paying jobs that others in the workforce refuse.
The Bureau of Labor Statistics (BLS) estimates that in 2007 foreign born workers – both in the country legally and illegally – comprised about 15 percent of the U.S. workforce. Of those, about 6.7 million were believed to be employed in the construction/extraction category which includes utility construction. A study by the Pew Hispanic Center (Passel 2006) concluded that illegal workers accounted for 25 percent of general construction laborers.
“Certain construction trades are considered ‘immigrant saturated,’ because illegal foreign born workers account for very large percentages of employment in those trades,” says Dallas attorney Elise Healy, a founding shareholder in the firm of Spencer Crain Cubbage Healy & McNamara, who heads the company’s business immigration practice.
“Utility workers,” she continues, “include highly skilled construction trades ranging from electricians, plumbers, pipefitters, pipe layers, drilling equipment operators and others, as well as lower skilled laborers. I think the relative youth and lower educational attainment of many recent immigrants – both legal and illegal – have attracted them to helper and general laborer occupations.
“Accurately distinguishing between legal and illegal foreign born workers in the construction industry is a real problem because the decennial census and BLS population surveys do not inquire into immigration status of employees,” says Healy.
“Demographers at the Pew Hispanic Center apply a statistical analysis that concluded the construction industry as a whole employed about 1 million unauthorized workers nationally,” says Healy. “The same study found that about 20 percent of illegal workers are employed in construction.”
No matter what construction market an organization serves, a continuing challenge is to be sure that foreign born employees and applicants being considered for jobs are in the country legally. As construction has become more dependent on foreign born labor, contractors, public works agencies and suppliers have found that this is not an easy task, and employing illegal alien workers can result in serious consequences, including substantial fines and even jail time. Healy points out that Arizona has passed a law that would result in the forfeiture of a company’s license to do business in that state upon a second violation of the prohibition on hiring unauthorized workers.
In the past, many have considered the green card as proof of a bearer’s legal status. However, counterfeit green cards are a growing problem, and Healy says that it is not possible to “verify” that an applicant is “legal” to work under current laws.
“The U.S.,” says Healy, “does not have a national identity card that is fraud proof, that is one which incorporates biometrics such as a fingerprint or some other evidence that the person presenting the document is the person to whom it was issued.”
To reduce the risk of violating immigration laws, what does an organization need to consider when hiring foreign workers? Healy provided several recommendations.
Understand the new enforcement environment
“Enforcement is not going to change substantially under the Obama administration, in my opinion. Work site enforcement by the Department of Homeland Security (DHS) Immigration & Customs Enforcement (ICE) agency focuses heavily on companies in ‘critical infrastructure’ industries – and I would consider utility system construction and maintenance to be in this group.
“Be aware that the days of administrative slap on the wrist type penalties for hiring unauthorized foreign workers are long over. ICE may administratively arrest and deport unauthorized workers whom they identify during work site enforcement actions, but company owners and managers, including human resources and higher level executives have been and continue to be targets of criminal investigations. Typical charges now include criminal violations of the Immigration Act, for knowingly hiring, employing or continuing to employ unauthorized aliens; or aiding and abetting the same; harboring illegal aliens; transporting illegal aliens; money laundering; fraud; perjury; identity theft; labor law/overtime violations; and conspiracy to commit all of the foregoing. Penalties for these offenses include substantial criminal fines, prison terms, forfeiture of company assets and profits, debarment from future contracts and very destructive publicity.”
Liability includes contract labor
“Much of construction is performed by contractors and subcontractors. Be aware that using contractors and contract workers does not immunize a company from liability for employing unauthorized workers. The Immigration Act prohibits either the direct employment of unauthorized aliens, or doing so through contract. This was the lesson of the Wal-mart case in 2005, in which the company, while admitting no wrongdoing, agreed to pay an $11 million criminal fine based on the conduct of janitorial service companies it had contracted with. If a company hires contract workers, it is subject to the same liability for actual or constructive knowledge that the workers are unauthorized, as is applied in the case of hiring direct employees. And the penalties are the same.”
Have a robust immigration compliance policy
“It is necessary, but not in itself sufficient, for every employer to have a written policy governing compliance with U.S. (and increasingly state) immigration laws and regulations. Top management must buy into the policy, and ensure that it is implemented at every location where the company does business, not just headquarters.
One way ICE can build a “pattern and practice” criminal charge against a company is to look at the firm’s immigration compliance at multiple locations. Even if the home office is very careful in its hiring practices, if other locations are not, a ‘pattern and practice’ charge can result. Consider centralizing immigration compliance procedures and for large employers, automating the process. Use regular, unannounced self audits of hiring practices, to ensure that every location is following the law, and completing a Form I 9 (Employment Eligibility Verification) on every new hire within 3 days. These audits can turn up surprising conduct which, if discovered and corrected timely, can mitigate liability in the event of a government investigation.
“Occasionally use an outside, objective auditor.
“Have a strong, clear protocol for responding to Social Security ‘mismatch’ letters. Failure to respond to such letters is one of the telltale signs ICE looks for in deciding whether to investigate an employer. Consider enrolling in the DHS E Verify system to check Social Security numbers and the names of new hires against the Social Security database. E Verify will not detect identity fraud, but you will at least know whether there may be a problem with a new hire, and can take steps to come within the ‘safe harbor’ to avoid liability for constructive knowledge that an employee is unauthorized. Be aware of what the ‘safe harbor’ procedure is, and follow it for all new hires.
“Be aware that as of Jan.15, 2009, all federal contractors whose contract is greater than $100,000, and all subcontractors on federal contracts for construction or services exceeding $3,000 will be required to enroll in E-Verify within 30 days of contract award and apply it to all existing employees who will work on the contract, and to all new employees hired during the course of the contract. Find out if your recruiters are of the same ethnic group as a large percentage of your hires, or from the same area of origin – ICE can find this out, and considers it a potential sign of lax immigration compliance. Find out first and ensure that hiring practices comply with immigration and labor laws.”
“In view of the current state of the law, employers must ensure that hiring managers are well trained in I-9 verification procedures. This means carefully examining the document or documents presented: Do they appear to be genuine? I have seen green cards and driver’s licenses that misspell the name of the issuing agency. Does the picture appear to be that of the person presenting the document? Has the document been tampered with? And be aware of which documents are acceptable.
“In December 2008, the DHS has just issued an ‘Interim Final Rule’ amending the I-9 regulations to eliminate certain of the original List A documents on Form I-9. Make sure your hiring personnel are using the current version of Form I-9, and are only accepting documents permitted by DHS. The same rule states that effective Feb. 2, 209, expired documents of any kind can no longer be accepted.
“If a fraudulent document is confirmed or disclosed by an employee, this is ‘actual knowledge’ that a person is not authorized and the only proper response is termination of employment; based on the misrepresentation, such an employee should be ineligible for rehire. Employers often ask what to do if such a terminated employee shows up with a new set of identity and work authorization documents – the answer is, in general, don’t rehire someone who previously misrepresented his identity – either he was lying then or he is lying now.
“Unfortunately, to avoid discrimination claims, employers cannot use E-Verify to screen out applicants, only to screen new hires. This is why all offers of employment must be contingent upon compliance with the I-9 process. As previously stated, E Verify will not detect identity fraud, since it only compares the employee’s name and Social Security number with the name and number on file in the Social Security Administration database; it cannot detect whether the employee is in fact the person whose name and number were submitted. In the future, this will change because DHS is in the process of adding photo records to its database of permanent resident alien name/number records.”
State immigration laws
“In the past two to three years, nearly every state has passed laws relating to immigration. One of the most common state law provisions prohibits contractors with the state from hiring or continuing to employ unauthorized aliens for work on state contracts. Some states require companies they contract with to enroll in E Verify. The State of Arizona passed a law that would result in the forfeiture of a company’s license to do business in that state upon a second violation of the prohibition on hiring unauthorized workers.
“Business groups in some states have fought state immigration statutes, arguing that federal law pre-empts state law in the immigration area. But thus far, these laws have not in general been overturned. Colorado, for example, actually goes beyond federal law requiring I 9 compliance, and asserts that Colorado employers must complete an additional state attestation concerning its compliance with the federal Immigration & Nationality Act. One result of the passage of the Colorado law was that large numbers of migrant farm and other workers left the state, to seek employment elsewhere. Oklahoma’s state law gives U.S. workers the right to sue an employer if it lays off a U.S. worker and at the same time is found to have one unauthorized worker on the payroll. A good source on state immigration laws is the National Conference of State Legislatures. This provides an update for the first half of 2008, and there are archived reports on state immigration laws passed in prior years. The same site may provide information on state enforcement of their immigration laws.
Editor’s Note: Elise Healy has nearly 20 years of experience in immigration law. In addition to representing clients on immigration labor issues, she serves as a consultant and lectures frequently on immigration labor topics.
Read more about the role of illegal aliens in the construction business in a sidebar to this article, Trends Of The Illegal Alien Workforce.