Should Employers Who Unknowingly Hire Undocumented Immigrants Receive Lighter Penalties?
General Reference (not clearly pro or con)
Susan Martin, PhD, Donald G. Herzberg Associate Professor of International Migration at Georgetown University, B. Lindsay Lowell, PhD, Director of Policy Studies of the Institute for the Study of International Migration at Georgetown University, and Micah Bump, MA, Research Associate at the same institute, in an Oct. 2007 Institute for the Study of International Migration study titled “Worksite Solutions to Unauthorized Migration,” offered the following information:
“Employers who violate IRCA’s [Immigration Reform and Control Act of 1986] verification provisions face different civil and/or criminal penalties, known as employer sanctions, depending on whether they committed paperwork violations or knowingly hired unauthorized workers… It is clear that there are categories of employers who still do not understand their obligations with regards to the worksite verification process. The level of confusion and willingness to learn the requirements appear to be somewhat correlated to the time necessary for work verification to be made and the level of employer involvement in the decision-making. The longer the process, the more paperwork required, and the more decisions that have to be made by the employer, the more likely an employer will be confused, reluctant to participate, disposed to committing an error, or simply motivated to game the system by accepting false documentations or opting out altogether.
There are employers who inadvertently hire unauthorized workers but do not predicate their business model on using such workers… There are also employers who comply with I-9 verification process but who are happy to have unauthorized workers as long as they have plausible deniability. Some employers knowingly hire unauthorized workers because they are the only available workforce or in order to exploit them. Yet other employers attempt to shield themselves from liability by shifting to labor subcontractors instead of directly hiring their employees.”Oct. 2007 - Susan F. Martin, PhD B. Lindsay Lowell, PhD Micah Bump, MA
The White House Office of Strategic Initiatives & External Affairs, in a June 14, 2007 email letter to the FreeRepublic.com titled “Spokesman [Nicholas Thompson] for President Bush Posts on Free Republic About Immigration Bill,” stated:
“We do not seek to wrongly penalize honest employers who unknowingly hire illegal immigrants, therefore we reserve the right to reduce or mitigate their penalties if the employer can show good faith compliance in following the law.
For those employers who do knowingly hire illegal immigrants, please know that we intend to penalize these employers strongly, and the Administration has already stepped up these penalties in the last couple of years.”June 14, 2007 - White House Office of Strategic Initiatives & External Affairs
Sue Meisinger, President and CEO of the Society for Human Resource Management, in a June 7, 2007 “Testimony Before the Subcommittee on Social Security of the House Committee on Ways and Means,” stated:
“U.S. employers, whether large or small, cannot be expected to consistently identify unauthorized workers using the existing system, but they are liable for severe sanctions if these workers find their way onto the payroll. Conversely, they are subject to claims of discrimination if they question the validity of documents too much…
We strongly believe that U.S. employers should be liable for their own hiring decisions, not those made outside their control. Enforcement needs to be vigorous and fair, and should focus on employers that blatantly ignore the law as opposed to employers who commit paperwork or technical violations in their attempt to comply. Employers need the right tools to verify a legal workforce. However, HR [human resources] cannot – and should not – be America’s surrogate border patrol agents.”June 7, 2007 - Sue Meisinger, JD
The Texans for Sensible Immigration Policy (TxSIP), a coalition of twelve Texan construction associations, in its website accessed Jan. 25, 2008, offered the following:
“[W]e believe we can secure our borders without criminalizing the employers that fuel our economy… Mass deportments of working immigrants and jailing productive employers are not viable solutions… We have asked the questions we can legally ask and collected I-9s.
We have acted in good faith and followed the law. We believe it would be a mistake to penalize such ‘good faith’ employers. Moreover, enforcement against ‘good faith’ employers will simply drive the immigrant workers to the open arms of less scrupulous cash-only operators… ‘Good faith’ employers should be part of the solution, not the scapegoat for the immigration problem.”Jan. 25, 2008 - Texans for Sensible Immigration Policy (TxSIP)
Angelo I. Amador, JD, MLL, Director of Immigration Policy at the U.S. Chamber of Commerce, in a June 7, 2007 “Testimony Before the Subcommittee on Social Security of the House Committee on Ways and Means,” stated:
“The Chamber agrees that… while the government should punish intentional violators, those employers whose only error was a simple oversight or mistake should be given an opportunity to rectify such error. We do not oppose efforts to increase penalties. However, the penalties need to be proportionate to the offense and comparable to other penalties in existence in the employment law arena… Penalties should not be inflexible, and we urge you to incorporate statutory language that allows enforcement agencies to mitigate penalties, rather than tying them to a specific, non-negotiable, dollar amount.
It is also critical to the employer community that it does not bear vicarious liability for subcontractor actions unless the contractor knew of the actions of the subcontractor… A number of additional penalties and causes of action have been suggested as proper penalties in a new verification system… Penalties must be tailored to the offense and the system must be fair.”June 7, 2007 - Angelo I. Amador, MLL
Richard Jones, Sheriff of Butler County in Ohio, responded to the following ProCon.org question in a Dec. 6, 2007 email stating:
“Should employers who unknowingly hire illegal aliens be penalized?
“If they are TRULY hiring illegal aliens unknowingly, then no. But… if they knowingly hire them or try to go around the system or turn a blind eye to it, they should be prosecuted to the fullest extent of the law. As an example: If an employer hires a ‘Father and son’ and there is only ONE (1) year difference in their age – that should be a sign of ‘turning a blind eye.”Dec. 6, 2007 - Richard K. Jones, MS
Julie L. Myers, JD, U.S. Immigration and Customs Enforcement (ICE) Assistant Secretary, in a July 26, 2006 “Testimony Before the House Committee on Ways and Means,” offered the following remarks:
“Criminally charging employers who hire undocumented aliens will create the kind of deterrence that previous enforcement efforts did not generate… To be clear, the magnet of employment is fueling illegal immigration…
ICE has developed a voluntary corporate outreach program aimed at strengthening overall hiring practices in the workplace. This outreach program will emphasize enhanced employer compliance through corporate due diligence… Employers who are shown to have hired a significant number of unlawful aliens in a year, notwithstanding these tools to verify employee eligibility, should be presumed to have knowingly hired these individuals…
Although criminal prosecution of egregious violators is our primary objective in worksite cases, a need exists for a new and improved process of issuing fines and penalties that carry a significant deterrent effect and that are not regarded as a mere cost of doing business. Only with a strong compliance program, combined with issuance of meaningful penalties, will the United States have an effective worksite enforcement program.”July 26, 2006 - Julie L. Myers, JD
Joseph George Caldwell, PhD, Financial Management Consultant, in a Nov. 27, 2007 email response to ProCon.org, wrote:
“[E]mployers who unknowingly hire illegal aliens should be penalized. There is little excuse for hiring an illegal alien. Any responsible employer can verify, without much effort, whether a person is a legal resident. There is little justification for ‘unknowingly’ hiring an illegal alien. If, however, the employer has evidence that an employee is an illegal alien and fails to act on that evidence, then he should be charged with aiding and abetting an alien invader, and, if convicted, subjected to severe penalties.”Nov. 27, 2007 - Joseph George Caldwell, PhD
Dave Chandler, Co-chair of the Colorado Green Party, in a June 15, 2005 article titled “Immigration Solution: Punish Illegal Employers; Respect ALL Employees,” from his “Colorado Green” personal blog, wrote:
“[N]ew immigration laws should be enacted that revolve around this fundamental principle: employers who hire undocumented workers should do prison time – let me repeat that, PRISON TIME – and pay big fines. These laws need to be constructed in such a way as to prevent company executives from avoiding prosecution by contracting out labor…
in this internet age, how hard can it be to check-out a person’s credentials to work legally… This proposal to punish illegal employers is pretty basic in its concept… We should ask Congress to enact some version of this plan.”June 15, 2005 - Dave Chandler
Silvestre Reyes, U.S. Representative (D-TX), in a Mar. 16, 2006 “Testimony Before the House Committee on Ways and Means,” stated:
“I believe that a fraud-proof Social Security card, coupled with a computerized employment eligibility verification system and properly enforced employer sanctions, could be a critical part of that effort [to curb illegal immigration]… I have been pleased to work… on H.R. 98, the Illegal Immigration Enforcement and Social Security Protection Act of 2005. The bill would substantially… increase civil and criminal penalties for employers who hire illegal immigrants or fail to verify [to know] their employment eligibility.”Mar. 16, 2006 - Silvestre Reyes
Virginia Deane Abernethy, PhD, Professor Emeritus of Psychiatry and Anthropology at Vanderbilt University, in a Nov. 28, 2007 email response to ProCon.org, offered the following:
“Laws are in place that require an employer to use E-Verify [Internet-based system operated by the U.S. Citizenship and Immigration Services (USCIS) linked to the Social Security Administration]. Therefore, any employer who does not know if his workforce is legal is in danger of breaking the law, and such an employer should be penalized if his workforce indeed includes any illegal alien.”Nov. 28, 2007 - Virginia Deane Abernethy, PhD