Page 9 - September2019

ISSUES REGARDING THE LAW Balancing Rights with Conflict in the Law

by Margaret Heine
BALANCING RIGHTS WITH CONFLICTS IN of their assets. There are fines and other of immigration policy affects the entire
THE LAW penalties for employers who ignore the nation.
How impartial are you? Could you sit federal law. The undocumented Employers are required to use
on a jury and give a decision which offends immigrant is to be held, charged, and Form I9’s and other documentation to
your personal belief systems? Could you apply deported under the current law. verify that a person is legally entitled to
the law without regard to your personal The 1996 Immigration Control work in the United States. If the
feelings? Legislation makes it advantageous to employer is informed that the worker’s
Based on the news headlines today, states and local agencies to assist in the information, which the employer
many in America are having difficulties with enforcement of our federal immigration submitted for verification, does not match
separating what is legal in the United States, laws as seen in U.S. v. Ontoniel Vasquez- the worker, then the employer has an
and what laws they would like to see changed, Alvarez, 176 F.3d 1294 (10 cir. 1999). affirmative obligation to verify the status
th
but until they are, the activity is illegal. The Federal RICO Act of the worker. The employer may
Blaming politics for the conflict between the (Racketeer-Influenced and Corrupt suspend, fire, lay off any employee which comparable to a social security
law and enforcement of the law seems to ignore Organizations Act) 18 USC 1961-1968, cannot correct the information regarding number for the reporting of wages
what the actual laws on the books direct law which is generally used in drug their status to show they are legally earned in the United States. Many
enforcement, employers, and workers to do. Is trafficking cases, also applies to available to work in the United States. banks also accept ITIN numbers to
it really acceptable to enforce some laws at the undocumented immigration violations The employer must do this to remain in open and maintain bank accounts. An
expense of other laws? How does the legal carried on by any legal entity or group compliance with Federal laws. ITIN number is issued by the federal
system balance these conflicts? Can you balance or non-profit association which assists Isn’t this discrimination by the government. So, even though it is
these conflicts and have a discussion which an undocumented person from entering employer? Under the Immigration illegal for an undocumented person to
differentiates between the actual law, its the country, uses a vehicle to transport Reform and Control Action of 1986, it work in the United States, the code
outcomes, and what you would like the law to undocumented workers, or harbors, would be illegal for the employer to not provides a way for the undocumented
be? Enforcement of existing laws should be a houses and employs undocumented ask about the legal status of a worker, and person to report earnings.
“No Fault” position, as the persons enforcing workers. then not to terminate their employment What if the undocumented
the law are upholding the laws and the Undocumented workers are at of the worker should it be discovered that person obtains legal status while
constitution of the United States. They cannot risk of deportation, criminal charges, they were undocumented. This is not working for an employer? Under
operate in a vacuum or invent their own and other immigration based remedies discrimination as they are treating all California law, a now legal worker
regulations. for working illegally. First, did they workers the same in applying the federal cannot be fired or discharged for being
This will be a multi-part series of falsify the information that they used to a legal worker, an updating their
discussion involving undocumented workers, get hired in the first place? Are the regulations regarding the availability of a personnel file to indicate their now
worker for legal employment.
paternal and abortion rights, and being an documents false or fake? Do the Different laws apply if the reason legal social security number. The fact
impartial juror. documents belong to someone other for termination is something other than that they were working illegally at
Undocumented workers and illegal than the worker? Is the social security just worker status. So, an undocumented this point cannot be held against them.
immigration is front and center in the news number fake? These are fraudulent worker can still bring a worker’s California law also permits
today. Federal law states that illegal activities of the undocumented worker compensation case, an employment undocumented workers the same
immigration is any person entering the United and provide criminal action under the discrimination case on the basis of sexual rights as all other workers with regard
States without proper documentation. This federal law. Most importantly, an harassment, religion, age discrimination, to wage and hour laws, minimum
includes permitting them to be in the country action under this section of the law nonpayment of wages and a variety of wages, overtime pay, benefits, breaks
illegally, overstaying their legal visas, or would potentially block the return of other claims. and meals. If an employer indicates
entering the country under false pretense or the undocumented worker to the United Undocumented workers are still that they are not providing the
false documentation. States even if they have children or required to report their income to the IRS undocumented worker with the same
8 U.S. Code Section 1324 et seq. makes it spouses here legally. and to the Franchise Tax Board—even if benefits as documented workers, the
unlawful for any company to hire an Conflict arises because many they are paid cash. Failure to pay taxes undocumented worker may bring an
undocumented worker. The law further people do not like the laws which are makes an undocumented worker action against the employer through
prohibits a company from continuing to employ part of the U.S. Code or in their ineligible for a number of State services, the Labor Commissioner at the
a person who is not documented once the individual states. Immigration is a and is a federal offense whether the California Divison of Labor Standards.
employer establishes the worker is not legally federal issue, not a state issue to decide. worker is legal or undocumented. The same is true of worker’s
authorized to work in the United States. States rights do not extend to revising A conflict within the law is that compensation benefits and state
If a company hires an undocumented the federal determination of legal disability benefits. The only
worker, they can be charged with a felony. immigration to the United States. an undocumented worker cannot legally difference between legal workers and
work in the United States, but the IRS can
Additionally, to fail to verify the legal status of Immigration is to be determined on a give them an Individual Taxpayer undocumented workers is that an
any worker is a misdemeanor, and the federal level as the uniform application Identification Number (ITIN), which is
employer may be subject to arrest and seizure Continued on page 14
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