Immigration raid at French restaurant shows difficulties of nabbing workers here illegally

It was just weeks after the Pacific Beach restaurant and bakery The French Gourmet had been raided by immigration authorities that chef and owner Michel Malécot was out to dinner.

He spotted a familiar face among the staff — a bus boy who had just been busted for working illegally for Malécot.

Unlike that restaurant owner — and numerous other San Diego employers who depend on illegal labor — Malécot had to answer for his hiring practices, a hard lesson that the Frenchman said cost him a fortune and should serve as a cautionary tale to other business owners as the likelihood of increased workplace enforcement rises under the Trump administration.

The criminal case against The French Gourmet, Malécot and the restaurant’s manager and pastry chef, Richard Kauffmann, in 2008 sent shock waves through San Diego’s restaurant scene. It was a rare case of the U.S. government targeting the employer, and Malécot said the intent was to use him as an example.

“I was the white elephant in the room,” Malécot said of the local restaurant community. Fellow restaurateurs would shake his hand and try to sympathize with his situation, “but they’d also give you that look that said, ‘Glad it was you and not me, buddy.’”

“It was a difficult time,” Malécot, 65, recalled in an interview in his cozy 45-seat dining room last week. He feared at one point he would lose his business. “I am very lucky to love what I do.”

A misdemeanor conviction and $396,000 in court-ordered payments later, Malécot says he is now 100% compliant when it comes to hiring legal workers through use of E-Verify, the government web-based program that green-lights the eligibility of employees.

But because the program is voluntary, many restaurants don’t use it and — whether knowingly or unknowingly — employ unauthorized immigrants. Malécot said that puts him and other employers following the law at a disadvantage when their competitors have a larger workforce to pull from and the potential to pay lower wages. E-Verify even tends to scare away some immigrants with valid green cards, he said.

It’s why at this point he would welcome increased workplace enforcement, a move that is anticipated as President Trump aims to stanch illegal immigration and open up more jobs to American workers.

“It should be a fair playing field,” Malécot said.

The raid

Malécot, from Normandy, France, came to the U.S. at 20 and worked in kitchens in New York and Florida before coming to San Diego in 1976, where he worked for French restaurant Le Côte D’Azur in La Jolla. He opened The French Gourmet in 1979 and moved to the Turquoise Street location in 1989.

He earned a reputation not only for good food and warm service, but for his charitable streak. In 2006, as The French Gourmet prepared to cater a benefit dinner free of charge at Marine Corps Air Station Miramar, a base security clearance check into Malécot’s staff set off alarm bells. The paperwork discrepancy sparked the investigation.

Malécot was returning from a trip to Europe when he got word that Immigration and Customs Enforcement agents had stormed the restaurant one morning in 2008. Authorities arrested 18 workers that day.

Malécot and Kauffmann were accused of engaging in a long practice of knowingly hiring unauthorized immigrants. When federal authorities had earlier sent letters warning them that Social Security numbers used by some employees didn’t match federal records, the employers were accused of telling the workers to get new paperwork and then rehiring them with new names and/or Social Security cards.

Malécot said he thought the charges were more of a paperwork problem.

“I thought OK, what’s the big deal, we don’t have anything to hide. We thought we were doing the right thing. If you have your Social Security card, we’ll take you. Some Mexican guys change their names,” he said.

Malécot was paying about 250 employees at the time, including many who were seasonal or part-time workers for the large catering side of the business. Everyone was on payroll.

During the investigation, an audit of employee records at The French Gourmet turned up at least 91 illegal laborers from 2005 to 2008, according to court records. Authorities said the employers should have known that about half of those workers were not eligible.

Malécot’s lawyer, Eugene Iredale, said that once Malécot knew certain workers were illegal, he didn’t have the heart to let them go because he had gotten to know them so well. Kauffmann also came to know many of his employees as family, spending years training some of them into skilled pastry chefs.

Malécot pleaded guilty to a misdemeanor and Kauffmann pleaded to a felony. The judge noted that Malécot paid fair wages to the workers and did not appear to take advantage of them, even giving them paid vacation.

Malécot said he decided to settle because his defense had grown very expensive and it was time to move on.

He was in the middle of reading Ken Follet’s “World Without End,” a medieval saga about the brutal world of knights, royalty and fiefdoms, and it helped put his predicament into perspective. “The problems those guys had in comparison to me…” he said.

The whole incident cost him $1 million to $1.5 million, he said, and he also had to fight back rumors planted by competitors that The French Gourmet was going under.

Tools for employers

Nearly 10 years later, Malécot says he doesn’t blame the agents for doing their job. But he said the method that employers had to verify eligibility was insufficient before E-Verify came along.

Since 1986, potential hires have been required to submit three forms of identification and certify eligibility on what is known as a Form I-9. It is up to the employer to accept or reject those documents.

It’s a system that is fraught with abuse and insufficient to root out illegal labor, said Peter Nunez, a former U.S. attorney for San Diego and chairman of the Center for Immigration Studies in Washington, which advocates for stronger immigration controls.

“To expect the employer to be able to verify the document is unfair,” Nunez said. “It’s why the I-9 system is such a failure.”

Criminal charges only apply if the employer knowingly hired unauthorized workers. It can be a difficult crime to prosecute, but that doesn’t explain the small number of workplace prosecutions over the presidential administrations of George W. Bush and Barack Obama, Nunez said.

“It’s a political decision made by Bush and Obama they did not want to enforce that law,” he said.

In 2011, there were 713 arrests related to work-site enforcement nationwide, dropping to 239 arrests in 2016, according to ICE.

The number of employer audits has also decreased, with 3,127 in 2013 to 1,279 in 2016.

That is expected to ramp up under Trump.

Malécot said he is finding it particularly hard to find skilled cooks for the breakfast shift, although it’s unclear how much immigrant labor factors into the issue. The talent coming out of culinary schools can be difficult to employ sometimes, Malécot said.

“They come out and think they are going to earn $50,000, $60,000 a year,” he said. “They have no skill.”

Now, The French Gourmet has about 50 full-timers and about 30 more part-timers. About 10 of those workers are green-card holders, Malécot said. He used to sponsor employees from abroad and take on temporary student workers from overseas, but he doesn’t anymore, citing the complicated paperwork and expense involved.

“It’s not worth the headache,” he said.

Davis writes for San Diego Union-Tribune.

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