Friday, February 1, 2008

Employers wary of policing immigration

Employers wary of policing immigration
As pressure builds and owners eye bottom line, they want to limit their enforcement role
12:00 AM CST on Sunday, January 27, 2008
By DIANNE SOLÍS / The Dallas Morning News
dsolis@dallasnews.com

As employers face increasing pressure from states and in the courts to more closely police Social Security numbers of undocumented workers, some in Texas say that's not their job and that such action could hammer the economy.

"What if some of my best guys turn out to be illegal?" said Lisa Galvan, who runs five Luna de Noche restaurants in the Dallas area and employs 200 workers. "It is scary."

Between 8 percent and 9 percent of the Texas workforce is estimated to be in the country illegally, according to an analysis of 2005 U.S. Census data by the nonpartisan Pew Hispanic Center done for The Dallas Morning News. That's nearly twice the national average of about 5 percent.

So a crackdown on employers in Texas – in agriculture and construction in particular, where the percentage of workers is higher – could have a major impact, some analysts and employers say.

According to the state comptroller's office, illegal immigration drained hundreds of millions from local governments in fiscal year 2005 but provided a boost of nearly $17.7 billion to the state.

"To do anything to dramatically reduce the Texas workforce would have pretty severe consequences," said Ray Perryman, an economist with the Perryman Group, an economic and financial analysis firm in Waco.

But others say that employers have had a free ride for far too long – exploiting illegal workers with low pay, few benefits and, in some cases, even wage theft.

"Businesses really are worried that this time they won't be able to pull the same trick: supporting laws that look tough and then are never enforced," said Mark Krikorian, who heads a Washington research center that supports immigration restrictions.

Ed Cox, who employs 125 workers at his blinds and shades factory in Haltom City, said, "It is horrible timing. It wouldn't take very much to throw us into a recession, and this issue would do it."

He added: "Our position as businesspeople is we are not in charge of enforcement."

Mr. Krikorian says that the argument that employers don't want to be immigration cops is "silly."

"It is kind of like saying that employers shouldn't be barred from hiring 12-year-olds in factories because that would make them child labor cops," said the executive director of the Center for Immigration Studies.

Voluntary checks
Employers don't have to verify Social Security numbers against the government database. They merely have to check that a prospective employee has a number.

Led by Homeland Security chief Michael Chertoff, the federal government is pushing hard to get employers to voluntarily check the nine-digit numbers via a database known as E-Verify. He also wants employers to take action when they are notified that numbers do not match.

Nationwide, nearly 46,000 employers, including nearly 2,300 in Texas, have volunteered for E-Verify. But that's still only a fraction of the 7 million to 8 million employers in the country for a program launched in 1997.

Employers contend that the database is error-prone and that a hasty dismissal of an employee based on a bad number could result in a discrimination charge.

They say they don't want to be immigration cops. They said that in 1986, too, when a sweeping overhaul of U.S. immigration laws made it illegal to knowingly hire someone without proper immigration status. Across the country, employers were forced to check work documents, and a brazen black market in fake Social Security numbers and other documents broke loose – in cities as diverse as Dallas and Nashville, Tenn., Los Angeles and New York.

Today, employers, attorneys and anti-illegal immigrant groups are watching closely the legal cases playing out in San Francisco and Phoenix.

• In California, a court must rule on whether virtually all the nation's businesses need to respond within 90 days of receipt of a letter from the Social Security Administration on numbers and names that don't match their database. A decision is expected by March 24.

• In Arizona, a federal judge must decide whether to let stand a new law that would suspend or yank the business license of an employer caught hiring an illegal immigrant. The new law requires bosses to verify Social Security numbers in a federal database.

Other states – including Arkansas, Oklahoma, Tennessee, Colorado and West Virginia – have approved similar measures.

Not enough workers
Ms. Galvan, the restaurateur, said she doesn't participate in E-Verify. Her managers do record Social Security numbers, as well as other documents, on the required government form known as the I-9 – created after the 1986 immigration overhaul. And her chief of operations follows up on any no-match letters that her business receives.

Ms. Galvan said she favors a legalization program for workers now living in the U.S. illegally – a population estimated to be about 12 million, according to the Pew Hispanic Center.

She said a lot of native-born workers don't want to work in restaurants.

"Young people go and work at The Gap," she said. "They want different starter jobs now. I always paid over minimum wage. I was all for raising the minimum wage."

When one of her employees misses work, she often fills in herself – delivering platters of chimichangas or jalapeño meat loaf to her customers.

In Uvalde, Texas, J Allen Carnes said he's doing all he can to keep crews in his cantaloupe, cabbage and onion fields at Winter Garden Produce.

He farms 3,000 acres. And during peak harvest, he employs 400 to 450 workers a day. In the last two harvest seasons, he's lost more than $500,000 because of labor shortages, he said in testimony last October before the House Agriculture Committee.

Mr. Cox, who runs three manufacturing facilities in North Texas, said his company does not knowingly hire illegal immigrants. But finding native-born workers to fill his low-tech jobs – putting slats together to make Venetian blinds or plantation shutters – is not easy.

"We are very established," said Mr. Cox. His company has been in business for 35 years.

But now, he said, "the economy is growing so much that $10 an hour isn't enough." His starting wage is $7.75 an hour.

"In Haltom City, there just aren't enough workers with a good Social Security number who can fill these jobs," he said. "Our biggest competitor is the Chinese."

Still, employers need to take great care in filling out I-9 forms and maintaining the records, said Dallas employment lawyer Mike Abcarian, whose law firm Fisher & Phillips runs workshops for employers on how to avoid problems with immigration enforcement.

Mr. Abcarian doesn't take a position on whether employers should volunteer for E-Verify. "Each employer needs to evaluate its participation," he said.

No-Match letters
Under the proposal in litigation in a San Francisco federal court, Homeland Security wants employers to take 90 days to clear up any discrepancies with numbers, after receiving what's known as a No-Match letter. That's Social Security Administration correspondence that a name and number do not match the government database.

Letters are traditionally sent out by the Social Security Administration to employers who have W-2 wage reports with 10 or more employees whose names don't match the numbers. Sometimes, the reasons for such mismatches are minor – data entry mistakes, multiple surnames and names that change from marriage or divorce.

In other cases, a No-Match letter is generated because a worker is not legally authorized to work.

"Those that ignore No-Match letters place themselves at obvious risk and invite suspicion that they are knowingly employing workers who are here illegally," said Mr. Chertoff in a terse written statement in December. Mr. Chertoff did allow that no employee should be dismissed based on a No-Match letter alone.

But due to the litigation, No-Match letters were not sent out last year to more than 138,000 employers nationwide.

The AFL-CIO, American Civil Liberties Union and San Francisco Chamber of Commerce, among others, sued, saying the proposed fix is unworkable because a government database is error-prone. They argue that native-born and other lawfully employed workers would be hurt.

They also say the Social Security Administration's earnings database contains confidential information that should not be used for immigration enforcement.

But Laura Keehner, Homeland Security spokeswoman, said "the issue still remains that if they knowingly hire illegal immigrants, they are subject to all the state and federal laws on the books."

"Many employers just threw [the letters] in the trash and disregarded the fact that they needed to respond and adjudicate each letter," said Ms. Keehner, adding that Homeland Security will make "minor adjustments" to the previous proposal and submit it to the judge.

Economic impact
Ms. Galvan; Mr. Carnes, the farmer and president of the Texas Vegetable Association; and Mr. Cox, a member of Texas Employees for Immigration Reform, have all lobbied federal senators or representatives for a legalization program.

What worries Mr. Carnes is what comes next. Already, he said, it's difficult to find workers to do the dirty field work.

"We do things as well as we can, but in a situation with the overall unemployment numbers way down, there is no way to replace these workers, and it scares us to death," the grower said.

Indeed, there could be an economic hit in an industry like agriculture, where so many workers are estimated to be here illegally, said Rice University economist Dagobert Brito.

"If you were to crack down in agriculture, it would really bring it to a screeching halt, particularly in industries that are not mechanized," Dr. Brito said, noting estimates that 60 percent of that workforce lacks work authorization.

But the potential economic impact in other industries is less clear, Dr. Brito said.

In the interim, Jamee Green, executive director of the Greater Dallas Restaurant Association, said restaurants are already feeling the labor pinch. One concern is that there'll be no net increase in native-born workers ages 25 to 54 between 2000 and 2020, according to the Migration Policy Institute.

"A lot of people will say that it's an issue of restaurants not wanting to pay good wages," Ms. Green said. "When the new minimum wage went into effect last year, a lot of our restaurants were not impacted. They were already paying above minimum wage."

For now, Ms. Green believes lawmakers are focused on the presidential contest, as Homeland Security is focused on enforcement.

"Immigration is not just a labor issue," Ms. Green said. "It is an education issue, a border security issue and it is not an easy subject. Unfortunately, it is coming up on the election year."

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