Right, I would not expect it because they’re rich and white and the raids were obviously targetting poor brown people. But it’s a circular argument to use ‘you wouldn’t expect them to arrest rich mostly white executives in a case like this, only poor brown people who recently won a lawsuit against the rich white executives’ as justification for not arresting the people at the top; the fact that one would expect such wildly differing treatment because that’s how things currently work is not justification for the situation.
It’s a requirement for all (or at least nearly all) employers. But employers are not required to be experts at determining the authenticity of the documents that are presented, and they are required to accept without question any document that “reasonably appears to be genuine and relate to the employee.”
If it’s a strict liability offense, it’s very easy, you arrest the employer and throw his criminal ass in jail. In a strict liability scenario “I genuinely didn’t know my employee was illegal” is legally identical to “I genuinely didn’t know she was 14.”
We choose to give employers the benefit of the doubt and make it difficult to prosecute them. We choose to make the poor brown people the criminals and let rich white people commit these illegal acts with impunity by crafting the law in such a way as to make employer prosecution difficult.
I don’t know what you would expect, but my point is fairly simple. The execution of search warrants on corporations (particularly large corporations) do not typically result in simultaneous warrantless arrests. (My personal experience is that federal investigations tend not to result in pre-indictment arrests even against individuals). Why? First, it takes time to review the documents and evidence that has been obtained. It’s actually somewhat unlikely that these companies had big filing cabinets labelled “Clear Proof of Illegal Activity in Here”. Second, it’s procedurally cleaner to collect the evidence by warrant, present it to the grand jury, obtain an indictment, and then make an arrest. You’re not concerned that one of these major corporations (or even their executives) are going to flee the jurisdiction. I’d also be surprised if the corporate executives were at the meat processing plants, but maybe you’re right that they were there to be arrested.
The obvious problem with this is that many illegal aliens gain employment by engaging in identity theft and/or presenting false documents. This is obviously often done with the tacit approval of the hiring managers (who are only looking for “plausible” deniability). In those cases, punishment of, at least, the hiring mangers seems appropriate. But I assume that in some cases (and I don’t know how many), the identity theft genuinely misleads the hiring official.
A strict liability rule (particularly if it results in “thow[ing]” the hiring manager’s “criminal ass in jail”) seems likely to have negative repercussions for legal Hispanic employees, as you might expect to see a rise in (unlawful) discrimination on the basis of ethnicity or national original. (Not unlike fears that the “ban the box” movement might result in increased racial discrimination against minority job applicants).
I didn’t ask whether, in that case, we’d arrest the employer; I already get what we’d do if we made that the case. Maybe take another look at what you quoted and replied to: I asked, how will he proceed if we make it a strict-liability offense?
Right, assuming that in your analogy you are being audited for minor labor laws.
The law says that you have to accept any documents that are reasonable to believe are real. If I look at the documents, and then say, “Yeah, you look too hispanic to be legal.” then I just broke the law and have a suit against me.
This food plant did have discrimination suits against it, which may explain why the employers were not giving the workers extra-legal scrutiny as to their citizenship status.
They get sued for looking too closely, and you want them locked up for not looking close enough. Kinda hard to find room there for even the most honest and ethical employer.
Not saying that there were not very likely managers who knew very well what was going on, but the law not only forgives a bit of ignorance, it actually requires it.
Change the law, make it legal for an employer to discriminate against candidates based on mere suspicion of lack of authorization, rather than giving the employee the benefit of the doubt, and then you can hold the employers responsible. Then employers will not be hiring any unauthorized workers, nor any employees who look or sound like they might be unauthorized workers.
How would you craft a law that protects employees from discrimination, but also punishes employers for not discriminating?
He will proceed by not hiring anyone who looks or sounds like they may not be authorized.
People try to get away with “She looked 18” defense and that is no defense. “She showed me a fake ID.” is also not a defense. So, if we are going with employment law following the same strict liability as statutory rape laws, then it is best to err on the side of caution.
Just like you don’t have to hook up with that 21 year old because you think that there is a possibility that she is actually 17 and you could go to jail, you won’t hire that legal worker because there is a possibility that they are not legally authorized to work, and you could go to jail.
Right. And so: is that what we want? Is it what we’d prefer?
Got it. He can run his business without being a criminal.
When I hear defenses about pathetic bastards getting choked to death for selling loosies, or getting shot because they didn’t put their hands up fast enough (or put them up too fast, whatevs) I hear a whole lot about what those people should have been doing different to not get in the sights of law enforcement. Don’t break the law. Don’t talk back. Don’t resist.
So, Mr. Business Owner can run his business without breaking the law, and it’s up to him to figure out how. And yeah, that also means not unlawfully discriminating against Hispanics. If he doesn’t have enough resources to do that, he can petition the government to spend a bunch of money to help him do business legally, like maybe having a verifiable system to document whether you’re legally hireable, like a federal ID.
Nothing about this is impossible, or even difficult, if you actually want to solve the problem.
What happens if, as you say, we make it a strict liability offense; and, as you say, a would-be worker shows up with “a federal ID” in hand. Only — whoopsie! — he shows someone else’s ID, or a fake ID. Do we soon grab that employer for a perp walk, or choke him if he resists arrest, or whatever, because, hey, the law changed, and this is now strict-liability stuff, and I sneer at the ID?
Any ideas, at all, about why or how those 2 scenarios might differ? Any. Idea?
I get that you want to punish the employer but doesn’t that also punish the employee? Do you want them here ? Do you want them working, while they ARE here?
This is the real reason why NO ONE wants enforcement of illegal aliens to be deportation. It is strictly political grandstanding
I’m writing the law, we have options. It could be that it’s strict liability but the penalties are quite small for a first offense, or small number of offenses, and become significant if you routinely hire people with “fake IDs”.
It could be that we have a strict requirement of ID checking for hires, such as scanning the ID, comparing the physical ID to the computer version (via the scan) and comparing the photos to the employee, and it is an affirmative defense to have these checks on file.
Again, this is not difficult if you want to solve the problem.
I want them here, legally, to work and live their lives without the spectre of deportation hanging over them.
That means a few things, one of which I believe is that employers should be strictly forbidden from hiring illegal immigrants. When you dry up that market for illegal labor, our society will get a much clearer picture of how many legal “guest” workers or whatever you want to call them we need in our economy. Certainly a number much higher than what is currently legally allowed. Companies desperate for this type of labor will convince our government to open up the taps (and legalize some of those already here) of legal migration, so that we have the workforce we need. We can cut back on dangerous illegal migration, because we both open up more legal avenues, and reduce the benefit of illegal entry. People here legally have a huge incentive to stay within the system, pay taxes, stay out of trouble, and generally be a positive contributor.
Actually I’d prefer a much easier system for someone to become eligible to work in the US, making fraud on the part of either the employer or the employee no longer an issue.
This is different from prosecuting the employers based on the laws that we currently have, which was the original question in the OP. This is writing new laws, commanding more resources, and invading privacy.
In order to actually have a robust system for checking whether someone is authorized, the federal government would have to gather biometric data on all authorized workers and maintain that database, which employers would have to check against before hiring you.
You said that you are writing the laws, let’s say that what you write will become law. Will you concentrate more on punishing employers for hiring unauthorized employees, or will you concentrate more on reducing the incentive for the fraud in the first place?
IMHO, that’s the easiest, most humane, most efficient way to solve the problem.
This seems like a pretty misguided criticism. There are very few strict liability crimes, and for good reason. Strict liability forces people to act in ways they may not otherwise in order to ensure they are not violating some law unknowingly. It’s a balancing act weighing the harm of said activity against the harm of forcing behaviors on everyone.
The elements that would support probable cause to arrest or detain a worker are different than the elements that would support probable cause to arrest the employer. That’s basically the answer to why employers weren’t arrested at the same time. If there is evidence to support probable cause that the employers knowingly hired people unauthorized to work in the US, they should also be subject to the legal system.
The best solution is requiring all employers to use e-verify, or some equivalent, and give employers safe harbor if they utilize e-verify. Some states require its use, but not all. And some states, including my own, prohibit mandating that municipalities use e-verify.
Another point to be made on this.
If an employer hires an employee, then they have to follow labor laws as far as pay and conditions, the employee pays taxes, and the employer pays payroll taxes. Even if fake documents were used, for the rest of it, it’s all legal and above board.
If I know that my I-9’s are going to be inspected, and I go to jail if there is something wrong, then I don’t actually hire people, and instead, pay them under the table. Then I can get away with breaking all kinds of labor and safety laws, pay no taxes or payroll taxes, and it is much harder to show that I was breaking the law because I have no records of having ever employed that person.
This under the table gig is pretty prevalent, and while I would never employ someone in that fashion, I have been employed in that fashion on a few occasions.
Then there is the gig economy. If someone offers to mow my yard for $20, do I need to run his ID through e-verify first?
I got hired by my brother once, more than a decade ago. He required me to bring in my passport to prove my citizenship.
The place I’m at now, and have been for decades, is owned by my father. I had to fill out an application and bring my ID/SS card on my first day. These days, taking care of that paperwork is one of my jobs and even when we hire someone I’ve known for years, I still require all that of them. Hell, we had to let a new employee go (that was the brother of a long time employee) because he didn’t get his I-9 Documents to me fast enough.
But there’s a good reason for that. If I don’t bother with that stuff for someone I’ve known personally for years or even close family (of which we’ve had a lot work here over the years), I risk looking discriminatory when I ask it of other people.
When E-verify stops sucking, maybe we can talk.
But, as I mentioned in another post, I do not see e-verify as being robust enough to actually stake your freedom on without biometric data on all authorized workers. Otherwise, it could just be someone else’s ID. I have a bit of face blindness, I have difficulties telling people apart. Throw in cross racial identification, and there is no way I would have any confidence that the employee presenting the ID is actually the owner.
With the law as it stands, I would err in their favor and hire them. If I were criminally liable under strict liability, I would err on the side of not being held criminally liable, and not hire them if I had any reason whatsoever to believe that they were not authorized.