Hiring Illegals : Sanctions: Others Have Tried It Too

At the time, there was talk of a virtual invasion from abroad. Illegal aliens, authorities asserted, were taking jobs away from lawful residents. Some said the very texture of society was threatened. Something had to be done.

The solution: Impose legal sanctions, including potential fines and jail terms, against employers who knowingly hired illegal aliens.

Such was the broad scenario in California in 1970, Hong Kong in 1974, Louisiana in 1979, West Germany and France in 1982. In each case, authorities imposed so-called “employer-sanction” laws against those who hired illegal aliens or, alternately, lawmakers stiffened existing statutes in an effort to stem the tide of illegal immigration.

Mixed Results

Overall, the results of such measures were decidedly mixed, according to various studies and experts. In California, there has never been a single prosecution under the law. And although overseas the sanctions did have some limited success in deterring unlawful immigration, the studies show that illegal aliens generally remained in their adopted lands and were able to find work, usually of the low-paying variety.

“Anyone who wants to circumvent the (Canadian) law, there’ll always be some way of doing it,” said Len Westerberg, a spokesman for the Minister of State for Immigration in Canada where employer-sanction legislation has been on the books since 1978 and has been considered an unsuccessful deterrent to illegal immigration.

When President Reagan signed the sweeping new immigration bill into law Nov. 6, the United States became the latest government to impose sanctions--including fines of up to $10,000 and six-month jail terms--against employers who hire illegal aliens. The new sanctions have been touted as a major component in stemming illegal immigration, but many U.S. experts remain skeptical about their prospective success.

‘Effectiveness Will Lessen’

“I think with each passing day, as people figure (the law) out, its effectiveness will lessen,” said Leonel Castillo, who was commissioner of the U.S. Immigration and Naturalization Service during the Carter Administration.

Overseas and in U.S. states, the implementation of employer-sanction legislation has run into a range of problems. Among the most serious are technical loopholes that have allowed employers to avoid prosecution or successfully appeal penalties and the emergence of fraudulent documents that have made it easy for illegal alien workers to get around the law.

In addition, past statutes have been stymied by legal challenges and an official unwillingness to commit sufficient enforcement resources to dissuade employers--many of them politically influential--from hiring the low-wage, compliant work force that has become an economic mainstay for many businesses.

Such impediments may well be encountered in the United States as well. Consequently, many experts maintain that employer-sanction legislation, while of great symbolic importance to lawmakers, immigration officers and editorial writers, is a questionable strategy for deterring illegal immigration.

“It’s going to be real hard to enforce this thing (employer sanctions),” said Thomas F. Lee, a business economist in El Paso, a border city where illegal labor is as central to area life as is the nearby Rio Grande. “There’s so much political pressure not to enforce the law, business could go on as usual. . . . It all depends on how tightly regulatory agencies such as the Border Patrol decide to really control the situation. And the more tightly they control it, the more complaints they’re going to get.”

INS officials and other proponents play down the past failures of employer-sanction provisions, noting that the laws, including California’s, often have been spottily enforced or practically ignored. This time, supporters insist, the money--and the resolve--will be there to properly enforce the measures.

“I believe that there’s sufficient will in Congress, and the public believes that we have to protect our borders,” said Howard Ezell, western regional commissioner for the INS. “To do that, you’ve got to fund sanctions.”

Others are not so sure of congressional resolve, particularly in light of the fact that the INS--traditionally one of the bureaucracy’s most undermanned agencies--will now be taking on the huge responsibility of checking hiring practices at tens of thousands of concerns. Even INS officials stress that enforcement is dependent on the “good faith” of employers to voluntarily abide by the law--a hope that many see as chimerical.

‘Just Wishful Thinking’

“I just don’t think they (INS officials) will get enough money to enforce or administer this bill as they hope,” said Castillo, who, like many experts, believes that economic development in Latin America is the long-term key to deterring illegal immigration to the United States. “It’s just wishful thinking to think that you can control a huge socioeconomic problem with some administrative action.”

But Ezell, among the most vocal of drumbeaters for sanctions, confidently predicts that about 12 months after the implementation of the new law this May, “We’ll begin to see a turnaround in the invasion” of illegal aliens. The new law, Ezell predicted, will stand as a “watermark . . . a turning point in the regaining of the borders of this nation.”

Others proponents of the law are not quite so sanguine. Rep. Charles E. Schumer (D-N.Y.), who was a key player in shaping the legislation, has used the phrase “river boat gamble” to describe the legislation, which also offers amnesty to longtime illegal residents and many farm workers.

“We’re not sure they (sanctions) will work,” Schumer said in a telephone interview from New York. “It’s going to be a challenge.”

The challenge has already been taken up in a dozen or so states where employer-sanction legislation has been enacted. California blazed the path in 1971, although the law here has since “disappeared,” in the words of one researcher. The state laws vary in scope and differ in substance, but experts say the measures have all been largely ineffective due to weak enforcement, court challenges and political resistance.

Failure to Enforce

“The main pattern in all these states is an almost perfectly consistent failure to enforce employer-sanctions statutes,” concluded Carl E. Schwarz, professor of political science at Fullerton College, in a 1983 study of eight states from California to Connecticut where such laws are on the books. “Few prosecutions and even fewer convictions appear on the record.”

In California, the Legislature began debating employer-sanctions legislation in 1970 amid arguments similar to those heard recently in Congress: Illegal aliens were taking jobs from Americans and receiving millions in government benefits. Like the recently enacted federal law, the California statute had strong backing from organized labor groups fearing loss of jobs for legal residents.

The law, which took effect in 1971 and is formally known as Section 2805 of the state Labor Code, made it illegal to “knowingly” employ illegal aliens if that employment would have an “adverse effect” on legal resident workers. After passage of the California measure, some argued that illegal aliens actually served as “scapegoats” for the economic recession then buffeting the state.

“By cracking down on these employers who knowingly engage in the hiring of illegal aliens,” then-Gov. Ronald Reagan said in signing the measure into law, “this legislation can help to improve job opportunities for thousands of legitimate California residents who earnestly seek employment in our temporarily depressed labor market.”

It never worked that way.

Once signed into law, implementation of the vaguely worded California measure was soon stymied by a lack of enforcement and court challenges. Not a single successful prosecution has ever been brought under its authority, according to the office of the California labor commissioner. Though many officials assume that it has been repealed, the statute, in fact, remains on the books.

‘Politically Embarrassing’

“California employer sanctions, fought by important economic interests, in practice unenforceable, and, now, politically embarrassing, disappeared into legal oblivion,” wrote Kitty Calavita, a research associate at the UC San Diego Center for U.S.-Mexican Studies and author of a 1982 study on the California law.

In Louisiana, where officials were concerned about illegal aliens from Mexico who entered from Texas, a law banning hiring of some undocumented workers first went into effect in 1979. However, the law was specifically aimed at relatively high-paying jobs and exempted certain professions, such as agriculture and forestry, that traditionally have hired illegal aliens.

“I think it was due to politics,” said Joseph Guillory, an attorney with the House Labor and Industrial Relations Committee in Baton Rouge, when asked why such industries were exempted.

Guillory, who said the law had helped “a great deal” in deterring employment of illegal aliens in the construction and petrochemical industries, acknowledged that farms and other industries not covered by the law probably continued to hire illegal aliens.

But the overall failure of the state laws, proponents say, does not imply that the new federal statute will meet the same fate. Among those supportive of federal employer-sanction legislation is Dixon Arnett, the former California assemblyman who authored the ill-fated statute in Sacramento.

“You can’t compare a state action that was never enforced to a federal law,” said Arnett, who is now legislative director for Sen. Pete Wilson (R-Calif.). The new law, Arnett predicted, will help make a “huge dent” in the problem of illegal immigration.

“The (problem) will be in five years maybe a third of the size it is today,” predicted Arnett, who was once barricaded into his Sacramento office by demonstrators protesting the California employer-sanction law.

Despite the failure of the California law, Calavita noted that the measure did have one pronounced effect: Evidence surfaced during Assembly hearings in 1971 and 1972 that the law prompted some employers to fire undocumented workers, mostly Latinos, or cut their wages.

Heightened Bias Feared

In fact, many critics have long asserted that a likely outcome of employer sanctions is a heightening of discrimination against people who fit immigrant stereotypes. If evidence of job bias and other discrimination surfaces, there is the prospect of legal challenges similar to those that have contributed to the paralysis of employer-sanction laws at the state level.

In fact, immigrant rights groups have already challenged in U.S. District Court in Sacramento some aspects of the new law.

Although evidence of job bias did surface in California, there is little indication of such problems after enactment of employer-sanction legislation abroad, according to congressional research.

In recent years, the General Accounting Office, Congress’ investigative arm, has conducted two much-quoted studies of the effectiveness of employer-sanctions law overseas. The two reports’ conclusions seemingly contradicted each other, further muddying the already murky outlook for such laws. Proponents and critics of the employer-sanction approach have each cited the studies’ results as “proof” of the measures’ effectiveness or ineffectiveness.

In 1981-82, the GAO conducted an extensive investigation of employer-sanctions laws in 19 nations and Hong Kong. Despite sometimes stiff penalties and the frequent use abroad of national identification documents that make the laws more easily enforceable, the report released in August, 1982, concluded that “such laws were not an effective deterrent to stemming illegal employment.”

The study cited two main reasons for the failure of employer-sanctions provisions: lack of enforcement and the ability of employers to sidestep stiff penalties through a variety of legal loopholes and subterfuges.

But in the fall of 1985, after receiving information that some countries had stepped up enforcement, increased fines and closed legal loopholes, Congress directed the GAO to conduct a limited follow-up investigation. Six weeks later, investigators released a second report--with considerably more upbeat results--tracking the issue in eight countries and Hong Kong.

“Most countries reported that employer-sanction laws have helped to deter illegal alien employment,” the second report said.

Limited Effect

However, despite the optimistic findings in the later study, the report also noted that of the nations surveyed, only two--Hong Kong and Austria, where the problem of illegal immigration was less severe--reported a decrease in the number of aliens working illegally. In three countries--Sweden, Denmark and West Germany--the estimates had remained stable, while in four nations with serious problems--Italy, Canada, France and Spain--the problem had gotten worse between 1981 and 1985, despite the presence of employer-sanction laws.

In West Germany, where many Turks had illegally entered, the GAO found that employers “have been able to evade responsibility for hiring illegal aliens and, when caught, have successfully appealed the administrative fines imposed.” One way employers sidestepped the law, investigators said, was to avoid direct responsibility by “leasing” workers from other firms that actually did the hiring and who were more difficult to trace.

In the United States, particularly in the apparel and manufacturing industries, some fear use of a U.S. version of the leasing subterfuge: Employers may increasingly “job out” tasks to small contractors who are unlikely to be raided by the INS, which traditionally concentrates its limited enforcement efforts on larger employers. The result, labor leaders and others maintain, will be to drive illegal aliens even further underground, exposing them more than ever to substandard working conditions, sub-minimum wages and generally greater exploitation.

“The underground economy will grow,” said Jeff Stansbury, western political and education director for the International Ladies Garment Workers Union in Los Angeles. “Undocumented workers will still be coming across the border; anyone who thinks this is going to stop them is fooling themselves.”

In Canada, officials acknowledge that prosecutions of employers under sanction provisions have been scarce, despite potential $5,000 fines and two-year jail terms for offenders.

“To have convictions, you need witnesses and evidence, and those things are hard to come by,” said Westerberg, the spokesman for the Canadian Minister of State for Immigration. “These people are willing to work for low pay, under bad conditions and are always fearful because (employers) are holding their illegal status over their heads.”

‘Circumvent the System’

The GAO cited estimates that as many as 1 million illegal aliens were living in Canada, many from Latin America and many apparently making use of false papers to obtain employment. “Through various schemes,” the GAO stated, “many aliens circumvent the system by obtaining fraudulent cards (documents) or presenting legal cards that belong to someone else.”

The availability of fraudulent documents could also be a major stumbling block to the success of the new U.S. legislation, many experts warn.

Under the U.S. law, all employers will be obliged to check new workers’ employment authorization documents (such as Social Security cards), as well as identity papers, such as driver’s licenses. However, forged facsimiles of both categories of documents are widely available on the black market, and many have predicted a boom in bogus document trade.

Meanwhile, the new law makes no requirement that employers independently verify the authenticity of documents submitted by workers--an omission that many believe will amount to a critical loophole.

And, bowing to civil liberties concerns, Congress rejected proposals for creation of a new national identity document that some believe could have made the law more easily enforceable. Congress did authorize plans to consider creation of a more secure system to verify work authorization, including ordering a report on the feasibility of a Social Security number validation system.

“I think that the only people who are going to profit from this law are the fraudulent document manufacturers,” said Linda Wong, associate counsel with the Mexican American Legal Defense and Educational Fund in Los Angeles.

Despite such sentiments, the law’s proponents voice the hope that the bill’s stiffer penalties against purveyors of false documents will dissuade illegal aliens from using them. Violators face substantial fines and jail terms of up to two years.

“If we put our mind to it,” said Rep. Schumer, “there should be a way to limit the forging of documents. In the United States we have an occasional problem with counterfeit money, but we’re not rampant with counterfeit bills.”

One success story recounted in the second congressional study occurred in Hong Kong, where illegal aliens from China have been a problem--albeit on a vastly smaller scale than aliens coming to the United States illegally. (Hong Kong estimated that it was home to about 5,500 illegal aliens in 1981, compared to estimates of up to 6 million in the United States today.)

In Hong Kong, the GAO found, stiff enforcement of employer-sanction laws--combined with strict border control and public support for the crackdown--has made a difference. “. . . If Hong Kong had not enacted employer-sanction laws,” the GAO report concluded, “the problem of aliens working illegally would be greater than it is because of the financial incentives that exist for employers to hire cheap alien labor.”

Only time will tell whether the new U.S. legislation will meet similar success, or whether it will “disappear” into the recesses of forgotten statutes, like California’s law.

“The bottom line on all of this,” Schumer said, “is that in the present situation, nothing is working. Will the new law work perfectly? Certainly not. Will it be better than the current situation? I certainly think so.”