Illegal Immigration Focus Switches To Employers

Guests

Julia Preston, national correspondent, The New York Times
Russell Pearce, president of the Arizona state senate
Mark Reed, former regional director for INS in Dallas

The Supreme Court upheld an Arizona law that penalizes businesses for employing undocumented workers. 26 states have now implemented their own immigration laws. And in 2010, the Obama administration arrested and fined a record number of employers for violating federal immigration laws.

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NEAL CONAN, host:

This is TALK OF THE NATION. I'm Neal Conan, in Washington.

Two weeks ago, the Supreme Court upheld an Arizona law that penalizes employers who knowingly hire illegal immigrants. Many other states approved roughly similar legislation, and many more look set to follow.

The federal government has also ramped-up immigration enforcement actions against businesses. Criminal and civil prosecutions both increased after the Obama administration took office.

The goal on both the state and federal level is to punish egregious cases and convince farmers, restaurant owners, clothing manufacturers, meatpackers and other employees - employers to change their behavior.

If you run a business, have you noticed changes? Give us a call: 800-989-8255. Email us: talk@npr.org. You can also join the conversation on our website. Go to npr.org and click on TALK OF THE NATION.

Our first guest is Julia Preston, New York Times national correspondent who's covered the immigration beat since 2006. She joins us from our bureau in New York.

Nice to have you with us.

Ms. JULIA PRESTON (National Correspondent, New York Times): Hi, Neal.

CONAN: And how does this Supreme Court decision change things for employers in Arizona?

Ms. PRESTON: I don't think it actually changes it very much, because this particular law had never been held up by the federal court. The law that the Supreme Court ruled on actually is - was very narrowly tailored to fit a specific terminology in immigration law.

And so it wasn't actually that surprising that the Supreme Court upheld this statute, although what was a little surprising was the sweeping statement that the court made about the possibility and scope of states to act on immigration policy in the way that Arizona did.

And I was out in Arizona recently. In fact, the law - the state statute has not been used that frequently so far to prosecute employers. There have been relatively few cases brought in Arizona so far against employers under the state law.

CONAN: Well, the controversial part of the law was what the opponents called the business death penalty.

Ms. PRESTON: Yes, that's right. And so - and I think it's also good to note that Arizona - as it has in other areas of immigration law - went further than most states in this area, so that on the second violation of knowing hiring of an illegal immigrant, a business stands in Arizona to lose its business license permanently. So it's a very severe penalty.

I think the cases are hard to make, though. And...

CONAN: I was going to say, knowingly, that's going to be tough to prove sometimes.

Ms. PRESTON: Yes. I think mainly the statute has had a kind of a psychological and, you know, political effect on employers, which is the ones that have an option in terms of who they can hire are being much more cautious, and employers who really don't have a full labor force available that is legal, primarily in agriculture, I think they're just keeping their heads down at this point in Arizona.

CONAN: Well, you know this better than I: A lot of people say you cannot pick America's crops without undocumented workers.

Ms. PRESTON: Well, I - we saw this, for example, recently in Florida, where the - a similar kind of law was considered. And in that state, the growers and the farmers really came forward very forcefully to admit that they don't have full options to raise the labor force if they don't reach out to immigrant workers. And most of those workers in agriculture are going to be undocumented.

CONAN: We're talking with Julia Preston of the New York Times. We want to hear from employers today, as states now pass legislation that allows them to punish employers who knowingly hire illegal immigrants, and the federal government cracks down, as well. Have you noticed a change? Give us a call: 800-989-8255. Email us: talk@npr.org. We'll start with James, James on the line with us from Philadelphia.

JAMES (Caller): Hello.

CONAN: Hi.

JAMES: Neal, it's a great pleasure to be on your show. Thank you. You have a wonderful radio show.

CONAN: Well, thank you for that.

JAMES: You're very welcome. I own a restaurant in Philadelphia. I also have a financial interest in a winery in California, in Mendocino County. And I find these regulations to be very refreshing, because I am very, very scrupulous about making sure that all the people who work for me are documented.

But I know that my competitors are not. And they hire people - I pay $12 an hour with full benefits, and I pay payroll tax and everything. And I know that these people are not. They're hiring people at like eight, $7 an hour, and they're not paying any taxes into the system. And that allows them unfair competition against me.

So I really get penalized by obeying the law. So the idea that something is coming in here to level the playing field, so you would say, is refreshing and wonderful.

CONAN: How do you - you say you're scrupulous. If somebody comes in with a Social Security card, well, it may or may not be their Social Security card. But how do you tell the difference?

JAMES: It's common sense. I mean, the people come in, they have photo ID, they have a matching Social Security card. They can give you, you know, their - they can give you their references in terms of where they live and how long they've been there and stuff. You can kind of tell.

You know, I mean, I'm not saying that 100,000 percent secure, but it's one of those things. If it passes the sniff test, I guess you would call it, you know, you can kind of tell.

CONAN: All right, James. Thanks very much for the call.

JAMES: Anyway, thank you very much.

CONAN: Appreciate it. We mentioned a few minutes ago the Supreme Court case upheld Arizona's law. The author of that legislation, the prime sponsor, was Arizona State Senator Russell Pearce, a Republican. He serves as president of the Arizona State Senate and joins us now from our member station in Phoenix, KJZZ.

And senator, thanks very much for coming in.

State Senator RUSSELL PEARCE (Republican, Arizona): Thank you for having me, and I - it's refreshing to hear an honest employer on the line.

(Soundbite of laughter)

CONAN: Well, do you hear a lot of dishonest ones on talk radio there in Phoenix?

State Sen. PEARCE: Well, I certainly do with those that have sued us time and time again for enforcement. You know, since employment is the magnet that draws the illegal aliens - and we're not talking about immigration. You know, I like people to keep this really an honest conversation. We're talking about illegal aliens, not immigrants. You know, but the magnet is employment. It's almost the way to reduce illegal immigration, is to shrink the employment magnet.

I mean, the policy should be based on principles, like James said: empowerment, deterrence and information policy should empower the honest employer by giving them the tools to determine quickly and accurately whether a prospective employee is an authorized worker.

I mean, and all it takes is, like you said, a little vigilance, a little common sense, like the employer just talked about. And what's really sad is we continue to have these folks that sue us over everything.

We've been to court six times on this employer sanctions law, the same with -I'm battling right now on SB1070. Simply remove illegal sanctuary policy and enforce the law.

It's amazing the effort they'll go to to make sure that they can maintain their illegal workforce and compete unfairly, immorally and illegally against the honest employer.

CONAN: What does an employer have to do to comply?

State Sen. PEARCE: Very simple: You're already required under the law to have your I-9s in your file. E-Verify was designed to benefit the employer, not punish the employer. It's free. It's Web-based. It's 99.7 percent accurate, and it's there to benefit employers.

The only reason an employer wouldn't use E-Verify is because they really don't want to know who they're hiring. I mean, it's like Judge Neil Wake, you know, made this statement - which I always appreciate, you know, his comments when he talked about, you know, the person that relies most importantly on the laws being enforced is the minorities. They're the most impacted by the illegal employment, you know, activity out there. And it's worth recalling the Arizona law is exclusive, based on federal prohibition, simply enforcing existing law in a compelling and enforcing manner.

Employers who cheat and hire under the table, hire illegal workers, compete unfairly and immorally against the honest ought to lose their license. Why in the world would you tolerate people who break the law and cheat and cost the taxpayers?

I mean, we have lots of reports, and we can go on forever on this, and we're never going to have enough time to cover all this...

CONAN: No, of course not.

State Sen. PEARCE: But just to hit some highlights, I mean, I really appreciated the court's opinion and their rule. You know, the court said: Our precedence established that a high threshold must be met if a state law is to be preempted. And that's the thing they always like to argue, is the states don't have the rights.

State have inherent - not delegated - inherent authority to enforce these laws, and the states have refused to do that. Arizona has passed many tough provisions. And let me tell you about the result.

Not only - you know, we have a 26-year high in unemployment across this nation, record foreclosures, and yet we don't defend the American worker. We don't demand that our employers use, you know, use - are vigilant in their effort to be honest and hold them accountable to the law.

And the court has rejected the chamber's ridiculous argument that Arizona law would be too effective in promoting law enforcement by imposing too large of a penalty.

CONAN: And let me just interrupt you for a moment. I wanted to check with Julia Preston of the New York Times on one thing: E-Verify, that plays an important part in this enforcement. It is, though, a controversial program.

(Soundbite of laughter)

Ms. PRESTON: It is controversial to the extent that, as the use of E-Verify has been mandated by states and has expanded very rapidly, there has continued to be a small, but very troublesome error rate...

State Sen. PEARCE: No.

Ms. PRESTON: ...that has caused some American workers or legal immigrant workers or otherwise authorized workers to be fired from their jobs.

And also, the - I'm sorry, a second issue with E-Verify is that some employers will try and get out in front of the use of the program and just lay people off preemptively.

And the third problem is, I think, that there are a range of employers out there who I don't think are trying to cheat, but that who find themselves in industries where there are still large numbers of illegal immigrants who are employed and who are reluctant to be forced to use this system until the federal government makes available a legal workforce for these industries. So I think those are some of the issues that have come up on a federal level.

State Sen. PEARCE: (unintelligible)

CONAN: I will let you respond after a short break, okay? All right, Russell Pearce, if you stay with us, and Julia Preston is going to stay with us, too, the New York Times correspondent, national correspondent who covers immigration - E-Verify, of course, a database of Social Security numbers that employers are required to check against if they're hiring people.

Stay with us. I'm Neal Conan. It's the TALK OF THE NATION, from NPR News.

(Soundbite of music)

CONAN: This is TALK OF THE NATION. Im Neal Conan in Washington.

The federal government and many states have put business owners on notice: If you knowingly hire illegal immigrants, you will pay a price. At the federal level, that means fines and possible jail time. On a state level, more and more legislatures are passing bills that target business licenses, among other penalties.

If you run a business, have you noticed change? Give us a call, 800-989-8255. Email talk@npr.org. And you can join the conversation at our website. That's at npr.org. Click on TALK OF THE NATION.

Our guests are Julia Preston, New York Times national correspondent who covers immigration for the paper. You can find a link to her recent story on the crackdown on employers at our website. Again, that's at npr.org.

Also with us, Arizona State Senator Russell Pearce, a Republican who serves as president of the Arizona State Senate and sponsored Arizona's Legal Arizona Workers Act, which penalizes businesses for employing undocumented workers.

And Senator Pearce, you wanted to come back on the e-Verify issue.

State Sen. PEARCE: Well, yeah. I mean, a bunch of misinformation. And I don't mean to be rude to Julia, but I really disagree with her adamantly.

E-Verify is a system - again, the most promising solution to this problem is the use of e-Verify, a real-time, web-based verification run by the Department of Homeland Security and Social Security Administration.

E-Verify determines with great accuracy the authenticity of personal information and considers by all new hires. You know, it's just silly to talk about a high error. Ninety-three percent are immediately verified, and then when reported - because half the time, it's a typo, it's improper entry to the data, you know - and within three days, 99.7 percent accuracy.

I mean, good grief, that's an A plus in any class that I know of, you know, in college or anywhere else. It is a great tool. And again, it says knowingly hired. Nobody's in trouble for accidentally. They must have vigilance in doing what's right.

It's the people who turn their head, wink and nod, and that's what's going on today, and that's why the I-9 process has been very flawed and used abusively because there's no way to prove any - they're not required to be document experts. I understand that.

So they put them in the file. They don't care whether it's accurate or not because that's all that's required under the I-9 process is you have an I-9 that matches the employee, you know, and you're home free.

Well, enough is enough. No more winking and nodding, you know, in this business that they've got to use - you know, that's the slave, you know, garbage that was used when we tried to abolish slavery in this country. Who will bring in the crops? Who will do the work if you do that? It's absolute garbage.

You know, complying with the law is important. Let's - you know, why is it fair to the honest employer who continues to be undone? I had a gal come to me, owns a paint company and has for 33 years, who says she's going out of business because she no longer can compete with the guy down the street who hires illegal aliens, has a 30 percent advantage in their bidding process because he pays under the table, hires illegal aliens.

Isn't it about time we stand up for the honest employer, the guy who follows the law, you know, and the honest American worker who's out of work and losing his home? Enough is enough with the excuses by these people. That's the same thing the U.S. Chamber of Commerce did and others, and we'll have a long list of those who sued, you know, on employer sanctions, and they don't want to follow the law.

There's no sneaking up anybody. Nobody's caught accidentally. I asked you to follow the law the best you can, you know, and if it's - accidents are forgiven. Nobody's caught accidentally. Nobody's firing people because they're worried.

There's a process, like the employer that called in and said you've got...

CONAN: And we do want to hear from some more employers, but Russell Pearce, one final question for you: There is no way that you're going to get everybody in the state of Arizona who employs illegal immigrants to stop doing that.

State Sen. PEARCE: You know, and I don't disagree with you. You're always going to have cheaters. We have laws against homicide. People commit homicide. We have laws against burglary. People commit burglary. It's against the law to steal; people still steal. I understand that.

But you have to raise the bar to the level that you get compliance. That's why you have a law is compliance.

You know what's happening in Arizona since employer sanctions? Over 100,000 illegal aliens have left the state of Arizona. You know, we have saved $500 million annually on K-12. Nobody talks about that because...

CONAN: K through 12 education.

State Sen. PEARCE: Our crime rate, our violent crime is down three times that of the national average, three times, 50 - homicides are down over 50 percent in Phoenix, all related to this issue. I mean, enough is enough.

CONAN: All right, Senator Pearce, thanks very much for your time today. We appreciate it.

State Sen. PEARCE: Thank you, sir, and thanks for letting me respond.

CONAN: Sure. Let's see if we can get another caller on the line. We'll go to Jimmy(ph), Jimmy with us from Tampa, Florida.

JIMMY (Caller): Hello, Neal, I live in Tampa and have a restaurant north of there. I've been in the food business 34 years. With all due respect to the senator and the experts in the field of undocumented immigrants, I can tell you that what is reality is totally at odds with what the law would like to see enforced.

A perfect example this year is near me in Tampa is a multi-generational tomato grower. This family has been in the tomato business since the turn of the century. And he opened three of his five fields to the public for - all you had to do was come out and pick up a basket, bring your own bags, and he would supply a basket for a dollar a basket. He was letting the public pick three of his five fields because he could not get enough I-9 verified workers because all the illegals that had been picking for him for years were afraid to come forth.

Reality is (unintelligible), and I can't speak to Arizona, even though I lived in Scottsdale at one point, but in the state of Florida, where I'm a native, the reality is people from Venezuela, Argentina, Mexico, Honduras, Belize, they bear the burden of picking fruit and vegetables that actually make it to the market.

And at a point when he was basically giving his tomatoes away, they were still $3 and $4 a pound in the grocery store. So reality is not congruent with law at this point. And I don't know what the answer is, but I just know it's not working.

CONAN: Julia Preston, I wanted to bring you back in on exactly that point. If these laws take effect along a broad scale, if they deter people, as they're designed to do, prices are going to go up, no?

Ms. PRESTON: Well, Neal, I wanted to say in reflecting on what Senator Pearce said and what the various callers have said, you know, I think that this area of employer sanctions is actually an area where remarkably we have a fair amount of consensus in the country about what needs to be done.

The issue is not what but when. And the problem that's come up is if you criminalize or you penalize employers and don't make available a legal workforce, then it puts many employers, like the tomato grower in Florida, in a very bad situation when all they're really trying to do is bring in their crops and bring them to market at a reasonable market rate.

The bottom line is that food is already expensive in the United States, and the market is just not going to bear, in agriculture, a huge increase in the wages for farm workers, for migrant workers that would allow that work to attract a substantial American workforce over a long period of time.

CONAN: OK.

Ms. PRESTON: I also wanted to reflect on - the first caller talked about his restaurant, and in fact the case that I wrote about in Arizona that is an example of what the federal government is doing is interesting on that front because this was exactly a restaurant in a chain of restaurants, the Chuy's Mesquite Broiler chain, and these employers had quite consciously and knowingly hired kitchen workers who were illegal immigrants.

And they had two sets of books, or at least this is what the federal government is alleging, and so they were paying the kitchen workers who were out of status, they were not paying them overtime, and they were paying them in cash under certain circumstances.

And so there were huge amounts of taxes that were not deducted from the paychecks of those workers. And so in fact, I think the federal government is trying to crack down on that kind of employer that Senator Pearce was describing, an employer who knowingly, as part of his business model, to undercut an employer like the Pennsylvania restaurant owner who called in first, I think there's a general agreement that we don't want that and that we need to have a better enforcement system in place to combat that kind of use of illegal workers.

The question is: What do you about the workers in a situation where we already have large numbers of them in the country, and in some industries, they are -continue to be vital for picking crops and for getting the job done?

CONAN: Mark Reed used to work on the enforcement side of the federal government's immigration efforts. He served as regional director for Immigration and Naturalization Service in Dallas, responsible for enforcing immigration law for more than a third of the country.

He retired in 2001 and founded a consulting firm, Border Management Strategies, and joins us now from his home in Tucson, and nice to have you with us today.

Mr. MARK REED (CEO and Founder, Border Management Strategies): Thanks, Neal. Glad to be with you.

CONAN: And what are you telling employers as they're trying to figure out how to comply with, well, not just the federal law but now the state laws?

Mr. REED: Well, I'm telling the employers that the landscape has changed dramatically with the new administration, and that is to their - and it's to their benefit to start planning on how to comply with the law and to minimize the risk.

But before I go on with that, Neal, I'd like to point out - or make a point is one of the issues that make this discussion so difficult is when you start talking about agricultural workers, you're kind of in a whole different ballgame than you are when you're talking about meatpackers and the restaurateurs and the hotel chains and construction. Those - all of those industries have people lined up - authorized workers, literally lined up - for jobs today.

So the economy has really changed things in terms of making unskilled or semiskilled labor available to those industries, and those are the industries I work with. I'm working with those industries that are now at risk because they may have unauthorized workers or may be at risk because they haven't been paying attention to the form I-9s.

CONAN: Not paying attention, some would say that's a wink and a nod, not paying attention?

Mr. REED: Well, for a long time, that was the expectation. I mean, when I was in the government, it was a wink and a nod. Nobody took us seriously. Even a lot of us didn't take ourselves seriously...

(Soundbite of laughter)

Mr. REED: ...because we knew that we just simply could not do the job that we thought we were expected to do.

CONAN: If just looking ahead as opposed to history, if an employer is based in, let's say, South Carolina thinking about opening an office in Arizona, do they have to worry about complying with two different state laws, as well as the federal law?

Mr. REED: Oh, in South Carolina, I think the only law that I'm aware of, that's out there, both in South Carolina and Arizona, in terms of the states, is they have to participate in E-Verify.

And as threatening as E-Verify is to a lot of employers, it should not be. All of my clients participate in E-Verify. All of my clients like E-Verify. They don't depend upon it to keep them from hiring unauthorized workers, but in terms of complying with the law and showing good-faith effort and stepping forward in the right direction, they're very satisfied with E-Verify.

CONAN: There's another side to this. Catholic Healthcare West, a hospital provider in California, Nevada and Arizona, was fined a quarter of a million dollars when it imposed unnecessary and discriminatory information demands on non-citizens authorized to work in those states. Some employers would say, wait a minute, we're supposed to verify; on the other hand, we're not supposed to ask too much?

Mr. REED: No. I think that the expectation out there is very clear. There are steps that you're supposed to take. There's a form I-9 out there. There's a handbook out there, and it sets forward, in a very direct and sensible way, what you're supposed to do, and it also tells you what you're not supposed to do.

As long as you're willing to have an immigration compliance program instead of wing it, like a lot of people do, it's very easy to stay out of the crosshairs of both sides of government.

And employers do have to pay attention. They can get hurt for doing too much, and they can get hurt for doing too less. So it's - they're in an environment now, where in the past, they didn't have to pay attention to it. Well, that day has changed.

CONAN: Mark Reed, thanks very much for your time. Appreciate it.

Mr. REED: OK.

CONAN: Mark Reed, a former regional director for the Immigration and Naturalization Service in Dallas, now founder and CEO of Border Management Strategies, with us from his home in Tucson. You're listening to TALK OF THE NATION from NPR News.

And let's go next to Sean. Sean with us from Connecticut.

SEAN (Caller): Hi. Thank you for taking my call.

CONAN: Sure.

SEAN: I guess, my question or comment for the guest is, does he think it's worse for an employee - an employer to hire someone that he may consider legal or not legal, the employee doesn't know, but there's insurance on the business, there's workers' comp being paid for the employee and there's also wages on the table being paid and taxes are taken out and given to the state and the federal government; versus a guy that is trying to operate completely under the table but happens to hire people that no one would suspect as being illegal? And...

CONAN: Which category would you put yourself in?

SEAN: I wouldn't put myself into either category, but my question - I guess, I have an opinion on this, and I think that...

CONAN: Well, are you an employer?

SEAN: I am an employer.

CONAN: And what in your situation, have you noticed changed?

SEAN: Well, I mean, I look at a lot more people than just my own business. I'm in the landscape industry, so it's one - there's, you know, landscaping, restaurants and construction; other things like that is basically you get a lot of different employees looking for jobs. You know, some of the guys that are definitely legal are asking for jobs, and, you know, a good amount of them want to be under the table so they could still collect.

CONAN: I see they want to be paid under the table even though they're...

SEAN: (Unintelligible) exactly, or they're trying to not pay, you know, some sort of child support or something. And I don't mean that that's everybody. There are plenty of good Americans that...

CONAN: Well...

SEAN: ...that have jobs and need jobs. So I'm not trying to take a cheap shot at anybody.

CONAN: And I understand your dilemma, but I'm not sure were trying to weigh the moral differences in breaking one law over another, but they're involved in breaking the law.

SEAN: The government should be focusing more on people that are trying to not to pay them taxes.

CONAN: All right. Well, thanks very much for the call, Sean.

This is an email that we have from Jack in Portland, Oregon. I'm a general contractor. We use E-Verify, but often I notice workers on our jobsites working for subcontractors whom I suspect being illegal. Are contracts required - are subs to comply with all laws? What are the message should I use to ensure all workers on our jobs are legal?

And, well, this also, Julia Preston, covers a lot of people in the agricultural sector. Farmers hire jobbers who hire. They're effectively subcontractors.

Ms. PRESTON: Well, I think that this has - the phenomenon of the subcontractor hiring illegal immigrants, especially in the construction industry, has really proliferated in the last few years. With the recession, part of the problem is that we have a very large and settled population of unauthorized immigrant workers in the country. And as the crackdown, especially, has proliferated at the state level, I think more and more of those workers, especially in construction, have been going underground. So I think this employer, this contractor's concerns are entirely justified. This is something that is happening on a larger scale out in the country.

CONAN: Julia Preston, thanks for your time today. We appreciate it.

Julia Preston covers immigration and national correspondent for The New York Times. She joined us today from our bureau in New York.

Again, you can find a link to her piece that she mentioned, that she filed from Tucson. Go to npr.org. Click on TALK OF THE NATION.

Up next, big changes for Julia Preston's bosses at The New York Times. We'll talk about the future of what's recognized as the most important newspaper in the country. Outgoing executive editor Bill Keller and the incoming executive editor, Jill Abramson, will join us. Stay with us. I'm Neal Conan. It's the TALK OF THE NATION from NPR News.

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