Immigration Law and Workplace Anti-Discrimination Law have a relationship status: "It's Complicated."

David Littlefield is an adjunct law professor for
the University of Utah. He has specialized in
Immigration Law for over 30 years.

"I'm gonna talk about everything you ever wanted to know about immigration law in the workplace--then, I'm gonna tell you some things you didn't want to know." That was David Littlefield's opening statement. The event was the Salt Lake City Mayor's Anti-discrimination Seminar, September 27, 2011 at the State Bar Association building. Dave, a white gentleman with an impressive beard, was comfortable behind the podium, as if he'd given this presentation many times before. 

the audience, all 32 of us

I surmised that the group was mostly made up of lawyers--many said they were legal advisers for small businesses or locally headquartered corporations. The lady behind the meeting registration desk had asked me if I was
attending the meeting for CLE course credit--that meant some of the attendees were there to earn professional development credit (most were middle aged, and I assumed they weren't students.) The woman I sat next to said she was an attorney for Energy Solutions. She was a slender, black woman about my age (late 20's). We were a racially and culturally diverse group. I counted 5 Asians, 16 whites (a couple of whom had native Spanish-speaking accents), 1 Indian, 2 blacks, and 10 persons of some other race. In this case, "other race" includes non-white Hispanics, and persons whose race I could not determine. One women shared with the group that she was of Middle Eastern origin.

back to Dave

Employers must obey immigration laws, but they can't discriminate. How does that work?

"Everyone," Dave explained, "everyone has to prove they have a legal right to work in the U.S. Not just people with Hispanic, or Middle Eastern, or Indian surnames." He briefly went over the importance of not discriminating based on race or ethnicity for persons who can verify work eligibility. There are many documents a person could use to prove eligibility--these documents must verify both the person's identity, and their right to work. There's the obvious documents that citizens would have (a U.S. Passport, or a driver's license + a social security card), as well as documents that non-citizen, legal work status immigrants should have. A permanent resident "green" card is one example. There's also a temporary work card (I-766), and a long list of other legally acceptable documents Dave listed on a Power Point slide--I didn't copy them all down. Employers must accept all forms of government specified documents and record the information on an I-9 form. Employees may turn their documents in within 3 days of hire.

If a verification document is obviously fake, because there's something wrong with it (like a social security card printed on the wrong kind of paper, or a driver's license without a number on it) you can simply refuse to employ the applicant.

Dave described a couple of scenarios that would be considered unlawful discrimination. Like, saying, "Let's do an I-9 verification on only our Mexican employees." Or "Let's require that employees with an accent have to show 3 verification documents." You can't just change the process, or demand to see a specific kind of document to make it harder for people who you suspect to be illegal.

E-Verify

My fellow seminar participants started asking questions, like, "What if a coworker comes to the boss and says, 'Jose told me yesterday that he's actually illegal?'" Or "If an employee confesses to someone in HR that he/she has illegal status? Is the employer obligated to look into it?" Dave bit his lip, and answered, yes, if presented with this kind of information, there is a legal obligation for the employer (a manager or someone involved in the hiring process) to look into it. The implication was that coworkers don't have the same obligation, they are not legally expected to turn fellow employees in.

http://www.dhs.gov/e-verify

If the employee confesses his or her own non-legal work status to the employer, the employer just has to let them go. In addressing the issue of testimonial evidence provided by a coworker, Dave said it's comparable to the importance of taking action if an employee tells you he knows another employee is stealing from the company. Here's how to handle it: You can't demand to see new documents if the originals appear to be normal. Instead, you need to use the e-verify system that USCIS (U.S. Citizenship and Immigration Services) has put in place. However, Dave warned, the e-verify system is infamous for having clerical errors. He went on about how it can unjustly put the innocent in trouble. "But," someone asked, "if e-verify isn't reliable, what are we legally supposed to do instead." Dave regretted that he didn't have a good answer for that. You just have to use e-verify, and keep your fingers crossed. And no, you're not supposed to report suspicious cases to the USCIS or ICE (Immigration Customs Enforcement).

So, what happens if they're not on the system--are they immediately fired? No. If the person's documents don't show a match on the e-verify system, the Social Security Department sends the employer what's called a Mis-Match letter. Dave summarized what comes next by saying, "and then, it's basically between the employee and the Social Security department." I found online the text of the standard Mis-Match letter, and it indicates that if the problem was more than a clerical error, the employer has to reject the documents presented, and may only hire or continue to employ the person if he or she presents another form of accepted documentation, which must be validated.

So, if the Social Security Department knows they don't have proper documentation, does that mean they will be deported? Actually, no. Dave explained that Social Security doesn't report that information to ICE. Interesting.

And by the way, Dave said, you also can't do an e-verify on new employees if their documents appear to be authentic and your only suspicion is based on race, or national origin. And you can't do a retro-active e-verify on non-recent employees, even if you happen to look at their documents again and suspect that something looks funny. If you didn't notice a document problem when the hiring process originally took place, then going back to look at their files later to look for a problem is considered discrimination (except, of course, in cases where there is newly reported evidence of the individual's illegal status, as in the scenarios mentioned above.)

business reps get specific

The meeting took place at the Utah
State Bar Association building in
Salt Lake City.

A white woman with dark hair and bright red lipstick stood up to tell her story, "I represent companies with factories who hire masses of people. They have a hard time getting the numbers they need, and willfully hire people who are bringing in a different identity each time . . ." She went on, describing a few other complicated, invalid I-9 situations.

Dave's response was, "Yeah, they could get fined for that. The I-9 process must be done right, the photos must match, etc."

A man on the other side of the room asked, "Is there something an employer can do to help an illegal employee get legal work status, or is that just dangerous water?"

"It's not really a good idea," Dave answered. "There will be a legal obligation to fire . . ." He mentioned the Cancellation of Removal process as a means by which an immigrant can change his/her status from illegal to legal, but added that it's rare. (Cancellation of Removal is what immigration attorneys try to get for clients about to be deported, it's really only for immigrants in good standing who can prove that a family member in a critical condition needs their help.) In conclusion, he said, the only thing you, as an employer, can do to help is create a contract with the employee saying that if they get a permit to work, you will take them back.

The second half of Dave's slide show outlined different kinds of temporary worker visas. His frequently reiterated point was that a very limited number of immigrants can actually get these. "There's a long, long wait for highly skilled workers from India and China . . . whereas for those from England, the line is much shorter. And individuals must maintain legal status while they wait." He meant that if they overstay tourist visas, or student visas, they no longer qualify. In fact, he added that if a visa-overstayer has 180 (or fewer) days of non-legal status and then travels abroad, he/she will not be given a visa to return legally to the U.S. for 3 years. If they exceed 180 days, they are inadmissible for 10 years.

I felt the irony in Dave's tone throughout the presentation. It was clear to me he disliked the idea of non-legal status immigrants being deported, or prevented from working. He cared keenly about curbing discrimination, and spoke apathetically about the immigration laws, as if they were an evil he only tolerated because he had to. And yet, the literal substance of his words was the recommendation that we follow the law strictly. There was something else funny about his presentation. He frequently sported one of those "knowing" smiles--like the Mona Lisa--when describing areas of law and life that don't match up. For example, it happened when he talked about the imperfections of immigration law enforcement (like the SS dept. not reporting cases to ICE), and again when he said that if an immigrant employee comes up to you and starts to say he has a confession to make, you can tell him, "Hey--if it's about legal status, I don't want to know."

waxing philosophical about the gray area

A white woman with a Spanish accent struggled to ask a question in the right words. She hadn't caught Dave's liberal implications as I had, and her inquiry was asked in a manner that made it sound like she assumed he agreed with strict immigration law. Meanwhile, her question was broad enough that I might have asked Dave the same thing myself:

How can work be separated from life? I mean, It's like you are in the work of changing the culture, and these "problems," I don't think of immigration as a problem, but I know many politicians and Americans do, anyway, these "problems" will always come back to the workplace, because they are part of real life. But how do you live with that personally?

She was right. Our strict immigration laws seem to be based on the unrealistic expectation that telling people they aren't "supposed" to work here will cause them to leave. Instead of causing immigrants to leave, the result of the laws is a counter-culture. That is, large numbers of well-meaning employers and employees turning a blind eye to broken laws, and hiding behind false records. And much of the hypocrisy is justified by the law: employers are legally obligated to turn down applicants who don't have proper documents, but are not legally obligated to turn those individuals in to the immigration police.

Dave seemed concerned that the woman thought him unsympathetic toward undocumented immigrants--he first spoke matter-of-factly to clear that up. "My job is to inform people about the law that's in place," He said, "But personally, I think there should be more kindness and humanity." Then his tone changed, he was speaking emotionally, vindictively.  "And I think that congress is being very stupid about this. Undocumented immigrants are being treated as a modern day slave class."

I'm still turning the woman's question over in my mind. Immigration law is only half-heartedly enforced. I wonder if that's because we Americans don't really have our hearts in it. Even those who argue that Rule of Law is the logical banner to uphold in the immigration debate may find they wouldn't have the heart to turn in a neighbor or a coworker. When you get to know an undocumented immigrant personally, you realize that their unlawful presence isn't causing harm to anyone. Certainly, there are some angry exceptions to this, but in general, I think when people leave the objective level of this issue, and come face to face with applying it at the subjective level, they suddenly become more interested in mercy than in rule of law.  Am I too generous in my assumptions about human nature?

Here's the second half of my theory as to why we're there's a disconnect between the rule-of-law measures promoted by conservative politicians and the level to which the laws are actually carried out. It has to do with Dave's big concern. First of all, let's take for granted that corporations and the agricultural industry have lobbying power. It's in the best interests of these powerful entities to ensure that there exists a significant class of people who will take hard labor jobs for low pay. If "illegal" immigrants were given legal work status, they would start to expect minimum wage, and other labor rights--farm and factory owners don't want that, it would cut into their profits. On the other hand, they also don't want their low-wage workers deported on a large scale, because even if Americans would work those jobs, they certainly wouldn't do it for less than minimum wage. Corporate and agricultural industries may be the reason deportation raids only take place in spurts now and then, to scare undocumented immigrants into accepting their powerlessness, or to convince the public that the laws are being upheld.

I wonder why there hasn't been more public dialogue admitting that this gray area exists, and delving into the reasons why.