01 Sep BALANCING RIGHTS WITH CONFLICTS IN THE LAW
Margaret A.M. Heine
is the principal counsel at Heine Law Group in Fullerton, California. She is licensed in California and Washington and has authority to practice before the Supreme Court of the United States and the United States Court of International Trade.
BALANCING RIGHTS WITH CONFLICTS IN THE LAW
How impartial are you? Could you sit on a jury and give a decision which offends your personal belief systems? Could you apply the law without regard to your personal feelings?
Based on the news headlines today, many in America are having difficulties with separating what is legal in the United States, and what laws they would like to see changed, but until they are, the activity is illegal. Blaming politics for the conflict between the law and enforcement of the law seems to ignore what the actual laws on the books direct law enforcement, employers, and workers to do. Is it really acceptable to enforce some laws at the expense of other laws? How does the legal system balance these conflicts? Can you balance these conflicts and have a discussion which differentiates between the actual law, its outcomes, and what you would like the law to be? Enforcement of existing laws should be a “No Fault” position, as the persons enforcing the law are upholding the laws and the constitution of the United States. They cannot operate in a vacuum or invent their own regulations.
This will be a multi-part series of discussion involving undocumented workers, paternal and abortion rights, and being an impartial juror.
Undocumented workers and illegal immigration is front and center in the news today. Federal law states that illegal immigration is any person entering the United States without proper documentation. This includes permitting them to be in the country illegally, overstaying their legal visas, or entering the country under false pretense or false documentation.
8 U.S. Code Section 1324 et seq. makes it unlawful for any company to hire an undocumented worker. The law further prohibits a company from continuing to employ a person who is not documented once the employer establishes the worker is not legally authorized to work in the United States.
If a company hires an undocumented worker, they can be charged with a felony. Additionally, to fail to verify the legal status of any worker is a misdemeanor, and the employer may be subject to arrest and seizure of their assets. There are fines and other penalties for employers who ignore the federal law. The undocumented immigrant is to be held, charged, and deported under the current law.
The 1996 Immigration Control Legislation makes it advantageous to states and local agencies to assist in the enforcement of our federal immigration laws as seen in U.S. v. Ontoniel Vasquez-Alvarez, 176 F.3d 1294 (10th cir. 1999).
The Federal RICO Act (Racketeer-Influenced and Corrupt Organizations Act) 18 USC 1961-1968, which is generally used in drug trafficking cases, also applies to undocumented immigration violations carried on by any legal entity or group or non-profit association which assists an undocumented person from entering the country, uses a vehicle to transport undocumented workers, or harbors, houses and employs undocumented workers.
Undocumented workers are at risk of deportation, criminal charges, and other immigration based remedies for working illegally. First, did they falsify the information that they used to get hired in the first place? Are the documents false or fake? Do the documents belong to someone other than the worker? Is the social security number fake? These are fraudulent activities of the undocumented worker and provide criminal action under the federal law. Most importantly, an action under this section of the law would potentially block the return of the undocumented worker to the United States even if they have children or spouses here legally.
Conflict arises because many people do not like the laws which are part of the U.S. Code or in their individual states. Immigration is a federal issue, not a state issue to decide. States rights do not extend to revising the federal determination of legal immigration to the United States. Immigration is to be determined on a federal level as the uniform application of immigration policy affects the entire nation.
Employers are required to use Form I9’s and other documentation to verify that a person is legally entitled to work in the United States. If the employer is informed that the worker’s information, which the employer submitted for verification, does not match the worker, then the employer has an affirmative obligation to verify the status of the worker. The employer may suspend, fire, lay off any employee which cannot correct the information regarding their status to show they are legally available to work in the United States. The employer must do this to remain in compliance with Federal laws.
Isn’t this discrimination by the employer? Under the Immigration Reform and Control Action of 1986, it would be illegal for the employer to not ask about the legal status of a worker, and then not to terminate their employment of the worker should it be discovered that they were undocumented. This is not discrimination as they are treating all workers the same in applying the federal regulations regarding the availability of a worker for legal employment.
Different laws apply if the reason for termination is something other than just worker status. So, an undocumented worker can still bring a worker’s compensation case, an employment discrimination case on the basis of sexual harassment, religion, age discrimination, nonpayment of wages and a variety of other claims.
Undocumented workers are still required to report their income to the IRS and to the Franchise Tax Board—even if they are paid cash. Failure to pay taxes makes an undocumented worker ineligible for a number of State services, and is a federal offense whether the worker is legal or undocumented.
A conflict within the law is that an undocumented worker cannot legally work in the United States, but the IRS can give them an Individual Taxpayer Identification Number (ITIN), which is comparable to a social security number for the reporting of wages earned in the United States. Many banks also accept ITIN numbers to open and maintain bank accounts. An ITIN number is issued by the federal government. So, even though it is illegal for an undocumented person to work in the United States, the code provides a way for the undocumented person to report earnings.
What if the undocumented person obtains legal status while working for an employer? Under California law, a now legal worker cannot be fired or discharged for being a legal worker, an updating their personnel file to indicate their now legal social security number. The fact that they were working illegally at this point cannot be held against them.
California law also permits undocumented workers the same rights as all other workers with regard to wage and hour laws, minimum wages, overtime pay, benefits, breaks and meals. If an employer indicates that they are not providing the undocumented worker with the same benefits as documented workers, the undocumented worker may bring an action against the employer through the Labor Commissioner at the California Divison of Labor Standards.
The same is true of worker’s compensation benefits and state disability benefits. The only difference between legal workers and undocumented workers is that an injured worker who is undocumented will not qualify for retraining or vocational rehabilitation benefits as they are not legally eligible to work in the United States. State disability benefits may be limited to what the undocumented worker has paid into the system.
The benefit which is denied to undocumented workers by the State of California is for unemployment insurance. As a requirement to receive unemployment from the State of California, you must be available to work, and since the worker does not have the requisite legal paperwork to work in the country legally, they are not eligible for unemployment.
Food for Thought: How do we balance the legal prohibition of undocumented workers from working and the practical matter that they are working? How can it be illegal for an undocumented worker to work and yet still obtain the same benefits as the legal employee? How can states choose to ignore federal law and fail to enforce existing laws regarding legal immigration and rights to work in the country?
Why are people blaming a President, their legislative representatives, Immigration and Border Protection, ICE agents, and any other agencies or persons for enforcing the laws of our country? For the collective good of a nation shouldn’t the laws of our country be enforced uniformly and unilaterally?
As an aside, all countries have processes for legal immigration. Most countries are not as liberal as the United States in “looking the other way” with regard to illegal immigration. If the rest of the world can enforce their laws, why shouldn’t the United States? Is it not detrimental to legal workers to have the workplace filled and congested with undocumented workers? Which American should not be working and give their job to an undocumented worker? How do we justify poverty among our citizens while providing more benefits to undocumented immigrants?
We have a constitutional process to change unpopular laws—repeal and enact new laws. No amount of “talk” can change the immigration canvas in the United States. There are laws that are mandated to be enforced by the agents and agencies assigned to their enforcement. The law needs to change and/or the law needs to be enforced uniformly, routinely, and unilaterally with the penalties to both the undocumented worker and the employer enforced. Let your representatives know your position and whether you want change in the law or you support the current laws.
Next month, the conflict of abortion, murder, and parental rights.
Clarification of Republic or Democracy reference: A question was asked if a person needs to be citizen to vote, simply “yes”. A U.S. citizen by birth or naturalization has a right to vote, and based on the state in which they reside, age, and other requirements may be part of the right to vote. In Federal Elections, generally you must be 18 years old and a citizen to vote.