Subcontractors’ key role in hiring illegal workers |

Subcontractors’ key role in hiring illegal workers

L.A. Times-Washington Post News Service

LOS ANGELES – When federal authorities catch illegal immigrants on the job, some U.S. employers have a ready explanation for how they came to be hired: “It wasn’t us. It was a contractor.”Although these middlemen, including recruiters and temporary agencies, do not figure prominently in the current debate over illegal immigration, they are playing an increasingly significant role in hiring and managing the nation’s workforce. Especially in California, an untold number of contractors employ immigrants – legal and illegal – in such industries as construction, janitorial service, hospitality and agriculture.For now, work site raids and prosecution are infrequent, except where immigration authorities perceive a national security risk. But even as pressure builds in Congress to crack down on the hiring of undocumented workers, the involvement of contractors and subcontractors could make enforcement nearly impossible, labor experts, government officials and immigration policy critics say.Under current federal law, companies face criminal or civil sanctions only if they knowingly employ undocumented workers.”An easy defense … would be to say that they used this subcontractor who they assumed was checking the documents,” said Jennifer Silliman, assistant special agent in charge with Immigration and Customs Enforcement in San Diego. “It gives a level of deniability.”Whether employers invoke the use of contractors as a defense or not, immigration authorities often don’t go after the employer when a contractor is involved.For instance, Immigration and Customs Enforcement agents arrested 17 undocumented workers in November at the U.S. Navy base on North Island in San Diego. But the agency is not taking aim at the Navy, saying there is no evidence that it knew the workers were undocumented. Instead, the agency is investigating Golden State Fence, the contractor that hired the workers.The contractors are “ultimately responsible for complying with all the hiring regulations,” said Scott Sutherland, deputy public affairs officer for the Navy Region Southwest.Golden State Fence Vice President Gary Hansen said the company did what it was required to do by law – check for documents and complete the required paperwork – but that “something went wrong.” The Riverside, Calif.-based company now participates in a voluntary employee verification program run by the government. “It takes the doubt out,” Hansen said.Boston’s Logan International Airport did not face fines or criminal charges after federal agents arrested 14 illegal immigrant janitors there last year, though Immigration spokeswoman Paula Grenier said the investigation into the “illegal worker scheme” is ongoing.Airport officials said they didn’t know the workers were undocumented. They blamed the subcontractor, Hurley of America, which hired the workers and issued them security badges.”We entrusted our confidence that they were hiring the right people and doing the right thing,” Danny Levy, spokeswoman for the Massachusetts Port Authority, said in a recent interview. “There was a breakdown.”Since the arrests at Logan, however, the Port Authority, which manages the airport, has taken over screening applicants and issuing security badges.”It is our responsibility ultimately,” Levy said. “It’s our airport.”Blaming contractors is not a sure-fire defense, but it has proved successful for some corporations. In one of the most prominent cases, a federal jury in 2003 acquitted Tyson Foods of bringing in undocumented immigrants from Mexico and Central America to work at its processing plants as part of a strategy to maintain production without raising pay.The government argued that Tyson officials knew the workers were illegal. Tyson’s attorneys said a placement agency was responsible for checking the paperwork. The jury sided with Tyson.Of course, employers use contractors for a number of reasons unrelated to getting around immigration laws: to cut labor costs, ease paperwork burdens or avoid having to pay benefits and workers’ compensation.Contracting “affects a much larger share of workers than ever before,” said Princeton University professor Douglas Massey. “This has become the norm in any industry where there are a lot of immigrants.”But contractors’ involvement can provide a convenient layer of protection. “It’s don’t ask, don’t tell,” said Tamar Jacoby, an immigration expert at the Manhattan Institute, a conservative think tank.The dramatic rise in the use of contractors and subcontractors began after Congress passed a 1986 law establishing sanctions against employers who hire undocumented immigrants, said Massey, who directs the Mexican Migration Project, which studies migration patterns on both sides of the border.He said the jump had been seen in numerous industries, including agriculture, construction, janitorial service, hospitality and landscaping.Just in California agriculture, University of California Davis professor Philip Martin estimates that contractors account for nearly half of employment on farms around the state – and between 60 percent and 80 percent of employment in seasonal harvesting.Contractors are paid to hire and manage employees for larger companies. For example, a supermarket chain may hire a janitorial contractor, who in turn hires the workers to clean the stores. Or a garment company might hire small businesses to sew their clothes. The contractors might also hire out the labor to subcontractors.”You can have layer upon layer,” said Gary Blasi, a law professor at the University of California, Los Angeles. “The main point of it is to offload all the liability for any illegal action … to the people at the bottom.”Without specific legislation to address it, Jacoby said, the problem would probably continue.”If there is no provision to deal with contractors, that would be a huge loophole” in any immigration bill, she said. “It’s hard to see how the law would be effective without that.”As it stands, a House immigration bill passed in December would require all employers, including employment placement agencies and day labor centers, to check the legal status of their workers. The bill would also create a tamper-proof identification card and increase sanctions for hiring illegal laborers. Before beginning its spring recess, the Senate was also considering a proposal to create a mandatory employee verification system as part of broader immigration reform.Still, one provision of the House bill, which must be reconciled with the Senate version, would offer specific protection to contractors who hire subcontractors. Contractors would not be liable for subcontractors’ hiring of undocumented immigrants if they did not know the workers were here illegally.For the most part, Immigration and Customs Enforcement has not treated all employers equally. The agency has focused its efforts on possible security risks such as airports, power plants and military bases. The agency says employers who use contractors may not know the background, or true identity, of their workers, who may have access to sensitive areas or information.But other employers are not entirely immune from civil and criminal sanctions, even if they use contractors, immigration officials said.Wal-Mart agreed to pay $11 million to the federal government last year after a raid resulted in the arrest of 245 undocumented janitors. Wal-Mart officials said they believed the subcontractors employed only legal workers, but investigators originally said executives knew about the undocumented employees.Legislators in Washington also are feeling some pressure from anti-illegal immigration groups, which say contractors are displacing American workers and reducing unions’ presence by hiring undocumented workers for less pay – often through informal hiring networks and day labor sites.”That underscores the need to have an effective system that assures all employers are competing on an even playing field,” said Jack Martin, special projects director for the Federation for American Immigration Reform. “It would affix responsibility on employers, so that they could no longer hide behind the pretext that they did not know that their employee was not entitled to work in the United States.”Alex Teague, senior vice president with Ventura County agriculture company Limoneira Co., said he isn’t trying to avoid liability or reduce costs. He simply needs workers – and contractors can deliver them.Limoneira, which farms more than 7,000 acres, employs about 300 full-time workers and an additional 600 contract workers in peak season. Teague said he can offer the pickers only seasonal work, so contractors are essential to keep the laborers employed throughout the year.”You try to do all the reasonable things you can to make sure everybody here is legal,” he said. “But I don’t think anybody with a straight face can say that everything is checked out thoroughly.”

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