Labor Employment Law Blog

The Racketeer Influenced and Corrupt Organizations Act (RICO) permits plaintiffs to act as private prosecutors and sue for injuries arising out of alleged conspiracies to commit specified types of felonies. In 1996, Congress amended RICO to add workplace immigration crimes to the list, including knowingly hiring 10 or more undocumented workers in a 12-month period. 

A new organization by the name of "IllegalEmployers.org" has established a website for reporting employers alleged to be engaged in the employment of unauthorized workers in California and elsewhere. The website describes the organization as a network of law firms, labor organizations, immigration reform advocates and others working to eliminate the incentive for illegal immigration. David Klehm, an Orange County attorney and founder of the website, together with the Immigration Reform Law Institute, an affiliate of the Federation for American Immigration Reform, are planning to file lawsuits against companies that allegedly knowingly hire illegal aliens under the California Unfair Practices Act, Business & Professions Code Section 17200, et seq. They seek to act as private attorneys general, taking on the job they claim the Department of Homeland Security's division of Immigration and Customs Enforcement is failing to perform, and in the process reap large attorney fee awards.

Last year, the Social Security Administration issued "no-match" letters to approximately 120,000 employers nationwide, reporting non-matching social security account numbers relating to approximately 7.3 million employees. For privacy reasons, the letters do not identify the names of the employees to whom the numbers relate. The non-matching numbers are detected by SSA in processing W-2 forms filed annually by workers and their employers.

Caution: Beware Overly Zealous Immigration Enforcement

Employers concerned with potential immigration raids and fines should beware going too far in their efforts to terminate undocumented workers. As one Kansas employer recently learned, overzealous enforcement may pave the way to liability for back pay, compensatory damages and attorneys fees for unlawful discrimination on the basis of race and national origin.

On May 8, 2006, Immigration and Customs Enforcement ("ICE") arrested 76 undocumented workers and 4 construction site managers at Fischer Homes, Inc. worksites in Kentucky. Fischer and its managers were charged criminally with harboring and transporting undocumented workers for financial gain. Tax investigators were also involved. On May 2, 2006, ICE carried a similar operation against a stucco contractor in Indiana, and charged the owner with harboring and money laundering. Both operations took place under the new Homeland Security "get tough" policy against companies who use undocumented workers.

The following article contains a brief analysis of the "labor through contract" theory of sanctions liability (specifically addressing the building and construction industry) and a 3-point compliance plan including a training component for managers and supervisors who are authorized to retain subcontractors on building projects.

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On April 20, 2006, DHS Secretary Michael Chertoff announced a nationwide enforcement program directed at worksite enforcement of the employer sanctions laws, which prohibit employment of unauthorized foreign workers. This announcement comes against the backdrop of raids conducted on April 19, 2006, against IFCO Systems, Inc., a German-owned palleting firm, at locations in New York, Pennsylvania, North Carolina, Ohio, Texas, Indiana, Arizona, Virginia and Massachusetts.