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  • Article: EMPLOYERS’ DIRTY HANDS AND THE MYTH OF JOB STEALING. By Stephen T. Blower, Esq.

    EMPLOYERS’ DIRTY HANDS AND THE MYTH OF JOB STEALING

    by


    Dysfunctional immigration policy enforcement and rhetoric has fostered some peculiar myths. One of the foremost of those is that it is possible to “steal” a job. The job does not give itself away for nothing, or allow itself to be stolen. The job did not presumably “belong” to another employee who had it taken right out from under him or her. Behind the job is an employer, taking responsibility for and both owning and reaping the benefits from the job. Employees cannot “steal” jobs from their employers or from other employees. The employee is givena job. What, then, is meant by “stealing jobs” that the undocumented seem so adept at? In order to answer that question, some context is needed.

    Any American with values or a conscience will not like the look of what trying to forcefully deport approximately 11 million people would really come down to, which inevitably would entail incredible and wanton cruelty, the destruction of whole swaths of the fabric of our society. Yet, seemingly every demagogue calling for mass deportation blatantly overlooks another, yet crucial side of the “undocumented presence equation.” Plainly, persons living and residing in this country regardless of status have to make a living to survive. By necessity all of us, citizen or not, legally present or not, have to become members and participants of the economy. In this sense, the money to survive, buy food, clothing and pay for shelter and basic sustenance needs, must come from somewhere. There are, of course, completely unfounded and highly improbable claims that the undocumented personally live off of welfare benefits, and simultaneously engage in “stealing jobs.” Having to survive means that millions of persons are not only present in the United States as undocumented, but must also work for American employers. This may seem to be a very obvious point: it is apparently so obvious that it is all but ignored when calling for action or consequences against the situation behind undocumented presence.

    Although clearly not all of the estimated 11 million persons are part of the United States workforce, let us assume, solely for the sake of this article, that perhaps at least one-third are, i.e. over 5 million persons. Out of that number certainly must be represented several hundred thousand separate employers. Each and every one of those employers who are giving jobs to persons unauthorized for employment is a lawbreaker; the I-9 compliance rules apply to all employers, and thus the employer should not, and cannot be allowed to shift the blame to those persons they are giving the jobs to. This is not a case of job “stealing,” it is job “concealing.” The undocumented employee is not concealing the job, the employer is. The employment is withheld from an otherwise authorized worker, and instead given to an unauthorized worker. Indeed, there is almost certainly no accident that employers continue to employ persons unauthorized to work, knowingly and intentionally. In fact there are many economic and real world incentives to employing an unauthorized worker. In his addiction to cheap labor, the employer gives the job to a person unauthorized to work knowing that doing so simply represents a calculated risk of losing the employee with little fear of reprisal, given his stock of covers and excuses. Employers engaged in such conduct know, absolutely, that they fail the clean hands test. If anyone is to be held accountable, shouldn’t it be employers’ exploitation of unauthorized workers? This article is not an argument for fairer treatment of unauthorized workers (although that topic deserves serious consideration), this is an argument that the blame for unauthorized employment must be laid at the feet of the employer. The fiction of job “stealing” disguises the real criminal activity, and deflects the blame from the real perpetrators. Who but the employer of an undocumented worker ultimately holds the ability to grant or deny hiring? Who is ultimately responsible for vetting an employee and is responsible to document through I-9 compliance the worker’s lawful right to employment? Who is “stealing” or “concealing” jobs from whom? What part of illegally hiring someone doesn’t the employer understand?

    The employer understands the economics all too well. The rewards are too big to pass up. The employer knows that this relationship is completely lopsided in his own favor. The employee has no recourse to formal complaint of abuses or low substandard wages. The employee cannot demand fair or equal treatment. The employee is at the mercy of the employer’s wish or need to exploit the employee through this employment. The employer reaps all the benefits from the employee while sidestepping requirements of the law to engage in fair hiring practices, pay appropriate taxes, and report all income transaction.

    Behind the myth of job “stealing” lies the misconception that any given job first belonged to an employee with a rightful claim to it, only to have the job hidden from the authorized worker, deprived of the job, or the job converted for someone else’s use, as if the job were some kind of physical property. Employment is not property in the usual legal sense, it is a legal relationship. A relationship is not created by and only one party. To have an employee there must be an employer.

    Out of all employment in the United States economy, there are more willing and able employees than there are jobs available. This is the formula behind unemployment statistics, and the rationale behind unemployment benefits and the insurance employers pay for it. In fact, no capitalist society is unemployment free, nor is the system structured or would reward a reduction of unemployment to zero. Competition for jobs is considered healthy and essential to a thriving capitalist economy, as employers typically (and understandably) vie to pay as little as possible for as much labor as possible. The employee typically wants the reverse, to work as little as possible for as much pay as possible. Somewhere between those two poles, tempered by regulations for minimum standards, but invariably in favor of the employer, a wage or salary is agreed upon. However, it is not correct that at any one moment there is a fixed number of jobs. That number is constantly growing and shrinking. The decision of how, for how much, when and where to allocate jobs is not in the hands of the employee. It is solely in the hands of the employer. It would be more correct to say that jobs are being given away illegally, that is to say “concealedfrom both other potential employees or governmental oversight. They cannot be “stolen.”

    For all the shrill cries of “Rule of Law,” nowhere do we hear about lax enforcement and sanctions against the employers who are presently employing and/or exploiting the undocumented workers. Nowhere do we hear clamoring for punitive monetary penalties for all those implicit I-9 violations or worker exploitation. At no time has anyone said, and taken seriously, “Really the problem here is that employers are breaking the law as much, if not in fact more so, as the person who is working unlawfully. The employers should be the target of enforcement.” Why is it that politicians and demagogues, who are more than ready to demand the deportation of millions of undocumented, do not likewise want to punish the thousands upon thousands of employer-culprits colluding in the crime of job concealment?

    Widely understood rules of economics show that where there is a market for something, it will eventually be met with supply. In a pure economic sense, a worker’s labor is neither illegal nor legal—it is the one thing the employee has that is being exchanged and paid for by the employer. However, under present law the act of employing someone who is undocumented, and in this fails to meet compliance with I-9 regulations, is not only illegal but also carries potentially severe consequences. The current regulations call for a penalty of anywhere between $110 and $1,010 per violation for employers violating labor laws and I-9 compliance rules. That large range is to make available multiple methods for the government to enhance the penalty depending on a number of aggravating factors, such as the number, frequency, level of occurrence, or negligence on the part of the employer. It is not uncommon to see the relatively few employers who are actually fined under this regulation to be hit with a six-figure sanction, and for some small business employers it would simply ensure the destruction of their business. Now, what would the investigation and fining with other sanctions of all of those many thousands of employers look like? Do Americans have an appetite for destroying not just people and families, but a sizable portion of the American economy? Could it be that it is easier just to overlook this complication? And finally, is it credible to believe that an undocumented person working, albeit unlawfully, for an employer by his own choosing is more culpable that the one for whom she works?

    Further questions follow on in this scenario of real accountability. In an unthinkable staging, a massive army of personnel rounds up and begins the process of deporting any undocumented individual who can be located. Except, how many Americans would like to see that for each person apprehended, there should follow an investigation and charges with fines brought up against that person’s employer? Will it follow that suddenly the appetite for the atrocious spectacle of this inhumane drama targeting undocumented foreigners diminishes? Does the threat of an economic massacre now temper the thirst for the destruction of personal lives? Unavoidably, it mean Americans and American employers should absolutely have to pay for this social genocide scenario. It means that for every person placed into removal proceedings--removal proceedings, not driven straight to the border under current law--that undocumented person’s employer should receive citation of non-compliance, violation of labor and immigration laws, and should be prepared to face investigation for deceptive employment practices, tax evasion, harboring undocumented persons, and other gross misdemeanors. Plus impose the steep fines that come with those. Are all these employers and the American workforce ready to forfeit whole businesses and jobs to make sure the Rule of Law is aggressively and universally upheld and stringently applied? The same person shouting a simplistic cry of “Deport them All” ironically cannot find the refrain, “Punish their Employers!”

    Consider this scenario: at the beginning of the process, the undocumented worker comes to the attention of ICE, and is removed from his or her job. The labor is cut off. Then, more importantly, the employer is investigated, assessed penalties, and brought in for a hearing on his crime of employing unauthorized persons. Then he is fined based on a variety of factors, but now not only has he lost an employee, whatever that was worth to him, he is now going to be held to accounts and will have to pay penalties on top of losing the worker. Furthermore, all back payroll taxes, FICA, and any other employer requirement violated needs to be assessed and fined. Now the employer can’t afford to keep employing his other employees, and if he survives the sanctioning process begins a recruitment process for new workers all over again. Americans will surely not appreciate the disruption to the flow of business this creates. Now unemployment begins to form at a staggering pace. But again, the question is put forth to the strict adherents to the Rule of Law —shouldn’t law-breaking employers be held equally accountable as the person who is unlawfully employed, regardless of consequence or cost?

    Once the undocumented worker has been extracted from his or her job, the real bureaucracy kicks in. Now multiple agencies and personnel are involved. The number of Immigration Courts and Judges will need to be exponentially increased. The same goes for ERO personnel and all support staff working for the Department of Justice, EOIR, and ICE. Their annual budget will need to be considerably more, by a number of magnitudes, than at present. The agencies responsible for investigating Employer violations and issuing sanctions will likewise have to be radically increased. The agency responsible for levying the impositions and collecting on those fines will also have to dramatically increase. Given the current backlog and unfilled positions in the government agencies tasked with processing immigration removal cases, it is inconceivable to add millions more to a system on the verge of collapse. That no one has given any real consideration to these issues is appalling, and exposes a great disingenuousness on the part of the mob and their leaders clamoring for mass deportation. And it is the greatest of hypocrisies to suppose that it is the undocumented, the people without voice or rights, are the ones “stealing” anything, or should alone be held accountable for the woeful state of affairs.

    Reprinted with permission.


    About The Author

    Stephen T. Blower is an immigration attorney in Columbia, Missouri.


    The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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