With immigration reform as a top congressional priority, businesses in the agricultural sector can expect to be directly affected. The focus of recent enforcement efforts and pending legislation is to hold employers more accountable for hiring illegal immigrants.

The practice of illegal hiring was first banned in 1986 when the Immigration Reform and Control Act was enacted. Under the act, workers are required to fill out I-9 forms and present specified documentation as evidence of their identity and authorization to work. Employers are prohibited from hiring individuals without the appropriate verification documents. In years past, however, businesses haven’t had reason to be too concerned.

Previous efforts to crack down on illegal hiring had only limited success. Furthermore, enforcement efforts were scaled back between 1999 and 2003 due, in part, to lobbying efforts by business interests. Prosecutions for illegal hiring plummeted from 182 employers in 1999 to four in 2003, according to government statistics.

As a result, today illegal workers represent a significant percentage of the total workers in certain sectors —  including the agricultural industries.

About 7.2 million unauthorized immigrants were employed as of March 2005, constituting about 4.9 percent of the civilian labor force, according to the Pew Hispanic Center. In the agriculture industry, an estimated 75 percent of the current workforce is illegal, according to the National Agriculture Coalition and the National Council for Agriculture Employers.

Recently, though, government officials have stepped up enforcement efforts. Penalties for hiring illegal immigrants have progressed from Immigration and Naturalization Service fines that could be regarded as the cost of doing business to the new tactic of handing out criminal charges and seizing assets.

Last year, Immigration and Customs Enforcement, which was created in 2003 to implement immigration laws, made 445 criminal arrests. The majority of those have involved employers —  as well as managers and executives, in some instances. That’s a quantum leap from 2002, when INS made only 25 criminal arrests.

Thus far, ICE has focused mainly on targeting blatant violators and those that allegedly use cheap, illegal labor as an exploitative business model. But that doesn’t mean that well-intentioned companies are immune from the government’s new hard-hitting, law-enforcement tactics. Immigration bills recently introduced in Congress signal the government’s intent to place employers in the gatekeeper role to stem the tide of illegal immigration.

A U.S. House bill (H.R. 4437) introduced in the 109th Congress would have mandated the enactment of a new electronic-verification system. Under this system, all new employees would have to be verified within two years, and all previously hired employees would have to be verified within six years. Employers targeted for illegal hires through the system could have faced fines of up to $40,000 per immigrant.

The House passed that bill by a comfortable majority at the end of 2005. While it died when the last Congress adjourned, a new version (H.R. 138) has surfaced. That version would continue to place compliance responsibilities on employers. Another bill (H.R. 98), would require the creation of an employment eligibility database. This would increase potential employer fines to $50,000 for each violation. House Speaker Nancy Pelosi (D-Calif.) is committed to immigration reform, so House action appears likely to occur within the next two years.

Under a Senate bill (S. 2611) passed by a 62 to 36 vote in 2006, the employee verification system would have been phased in after 18 months and after $400 million had been appropriated to implement it. Unlike the House bill, previous hires would not have to be verified. Fines would have amounted to $20,000 per immigrant under the Senate bill, and employers with patterns of illegal hiring could have faced three years’ prison time. This bill also died when the 109th Congress adjourned.

However, a new comprehensive border security and immigration reform measure (S. 330), with “guest-worker” provisions, would impose civil penalties up to $25,000 for a first violation. For second and subsequent violations, the bill provides for imprisonment of up to two years for the person who hired the unauthorized worker. It also would disqualify the employer from using the guest-worker program.

Any of the proposed bills presents a “catch 22” for employers.

On the one hand, an employer who ignores verification requirements or fails to take action after receiving a “no-match” notice could make an illegal-hiring case easy for prosecutors. Yet, pulling the trigger too soon and terminating employees while they try to clear up database or verification errors may subject employers to expensive discrimination lawsuits. Last month, a federal court of appeals affirmed a judgment in excess of $1 million dollars in favor of a former employee who sued his former employer for wrongful termination and discrimination after he was terminated when his work visa expired. (Incalza v. Fendi North America, WL 656355, 9th Cir. 2007.)

There is little agreement on how to resolve the politically charged debate over illegal immigration in this country. However, there does seem to be consensus among lawmakers and immigration-enforcement officials that employers need to shoulder greater responsibility as part of any solution.

While debate continues over the details of the process that will be implemented and the punishments that will be exacted, one thing seems certain: Employers will assume the gatekeeper role. Let’s hope they don’t get their hands caught in the “gate.”

Walter Stella has practiced employment law for more than 15 years. He joined the San Francisco office of Shook, Hardy & Bacon LLP in 2005. He frequently writes and lectures on employment law issues. He can be reached at wstella@shb.com.


BE ON THE LOOKOUT

When you search legislative databases for bills that address immigration issues, dozens of proposals will appear on your “hit” list.

Among those you will find that members of the 110th Congress have introduced employment-related bills specific to the agricultural industry (H.R. 371; S. 237; S. 340), as well as more comprehensive measures that address employment issues in the larger context of border security (S. 330).

If your business could be affected by such legislation, investigate the details further. Then consider letting your congressional representatives know where you stand on the issues. Your best opportunity to shape reasonable laws comes when the proposals are being introduced or marked up in committee.