Thread: AZ: Employers busted by hiring law so far: 0

Employers busted by hiring law so far: 0

Thomas seeks new powers after measure's quiet year

by Craig Harris and Daniel González - Dec. 28, 2008 12:00 AM
The Arizona Republic

When the state's employer-sanctions law took effect nearly a year ago, it threatened to shut down businesses that hired illegal workers.

But not a single employer has been taken to court in Arizona, mainly because the landmark law is too difficult to enforce, authorities say.

In Maricopa County, where the law led to raids on a dozen businesses and the arrest of 159 workers and a manager, investigators have not been able to assemble enough evidence showing that employers actually knew the arrested workers were illegal, which the sanctions law requires.

A few employers have resisted turning over their hiring records or talking to investigators.

As a result, Maricopa County Attorney Andrew Thomas wants the Legislature to give prosecutors subpoena power to investigate cases under the employer-sanctions law, which is enforced by filing a civil lawsuit.

That would make it easier for investigators to force employers to turn over records.

Authorities have obtained records up to now with criminal search warrants, allowed because the raids were carried out as a probe into immigrants' criminal identity theft. But Thomas said officers need subpoena power to make a civil case directly against an employer and prove intentional hiring of illegal workers. Employers in violation can have business licenses suspended or revoked.

Business groups oppose the change, saying the sanctions law is already the toughest in the nation and most employers are complying. Giving law enforcement more powers would lead to further harassment of businesses when the state's economy is already suffering, they say.

The limit on investigative powers is not the only reason for a lack of action against employers.

To a large degree, the state's faltering economy so far has rendered the sanctions law moot because construction, manufacturing, hospitality and other industries that rely heavily on immigrant labor are laying off employees, not hiring them, prosecutors say.

The law applies only to hires made after Dec. 31, 2007, and many of the 151 illegal immigrants arrested in the 12 raids had been hired earlier, authorities say.

Still, supporters say the law is fulfilling its purpose of turning off the job magnet that draws illegal immigrants to Arizona. Employers fearful of losing their business licenses are taking extra steps to make sure they aren't employing illegal workers, which in turn has driven many undocumented immigrants and their families to leave the state, officials said.

"I think it's a good deterrent," said Maricopa County Sheriff Joe Arpaio, who has partnered with Thomas to crack down on illegal immigration. "People are worried about it and worried about us going into business establishments and arresting employees on identification theft and forgery."

Critics, however, contend that the Legal Arizona Workers Act is being used as an excuse to target only illegal workers, not employers, an ineffective way to fight illegal immigration.

"It (raises) the question: After all the expense and resources put into this law, were the employers the real target?" said Phoenix immigration lawyer Gerald Burns. "Probably not. It was to instill fear and to vet out suspected undocumented workers or drive them out of the state."


Difficult to prove

A year ago, Arpaio and Thomas vowed to aggressively enforce the sanctions law, but they now acknowledge the law has been difficult to enforce despite the high-profile raids.

"It's a very tough law," Arpaio said.

Over the past year, deputies raided a dozen companies in Maricopa County looking for illegal workers. But all of the worksite raids were based on criminal-identity-theft probes, not civil violations of the sanctions law. The raids were typically launched after sheriff's deputies received tips, some anonymous, of illegal workers using fraudulent documents to gain employment.

The sanctions law broadened the definition of identity theft to allow charging illegal immigrants with a felony when they use fraudulent documents to get hired, even if the numbers on those documents are fictitious and no real identity was stolen.

Of the 160 people arrested, 87 were illegal immigrants charged with felony counts of identity theft and forgery. Sixty-four were cited with federal immigration violations and turned over to immigration officials for deportation. Eight were U.S. citizens arrested on unrelated warrants. In addition, a food-services manager at a water park was indicted in December on felony charges in connection with the hiring of an illegal worker, Thomas' office said.

Investigators also seized hiring records at the 12 businesses using search warrants to investigate use of fraudulent documents. In six cases, companies were cleared of violating the sanctions law because the illegal workers had been hired before Jan. 1 or it could not be proven that the companies knowingly hired illegal workers, Arpaio said.

Some defense lawyers are critical of charging illegal workers with felony identify theft, saying it is being used as a tactic to get them to testify against their former employers.

Undocumented immigrants charged with felonies are not eligible for bail, so they "stew" in jail, said defense attorney Robert McWhirter.

"They are trying to coerce them into testifying against their former employer," McWhirter said.

McWhirter said he believes authorities are reluctant to bring a complaint against an employer for political reasons.

"The bottom line is that the county attorney is not equipped to deal with these cases, so it's easier to pick on the little aliens. And at the end of the day, it's the employers who have the power to contribute to political campaigns," McWhirter said.

Thomas denied that his office is dragging its feet.

He said six other businesses are still being probed for possible sanctions violations, though finding enough evidence will be difficult.

"We will continue to work on cases, but we may have hit a wall because of a lack of civil subpoena power," Thomas said.

Thomas and other prosecutors said they need subpoena power to obtain employer records and compel those inside a business to cooperate. County attorneys have subpoena power in other civil cases they can bring, such as for fraud, but not for employer sanctions. Thomas pointed out that the Arizona Liquor License and Control and Insurance departments, which can revoke licenses, have subpoena power to regulate their industries.

Dennis McGrane, chief deputy in the Yavapai County Attorney's Office, said employers are well-aware of the limits prosecutors have, but most are complying with the new law.

"There's a lack of ability under the law to effectively investigate," McGrane said.

The author of the employer-sanctions law said he's ready to help when lawmakers meet in January.

"I will give them whatever tools they need to enforce the law," said Rep. Russell Pearce, R-Mesa, who was elected to the state's upper chamber and will be Senate appropriations chairman. "I intend to have a bill to do that."

Glenn Hamer, president of the Arizona Chamber of Commerce and Industry, believes that giving subpoena power to authorities to investigate the sanctions law would be a mistake.

He argues that one reason no employers have been accused of violating the law is flimsy evidence stemming from a provision that allows anonymous complaints.

Such complaints can be made by disgruntled employees or businesses trying to hurt competitors, Hamer said.

Hamer favors asking the Legislature to eliminate anonymous complaints, especially in light of the state's weak economy and multibillion-dollar budget shortfalls.


Identifying workers

Outside Maricopa County, investigators also have had difficulties enforcing the sanctions law.

Before filing a civil case, a prosecutor must confirm with U.S. Immigration and Customs Enforcement that a worker is an illegal immigrant unauthorized to work.

Officials in ICE's Phoenix office, which oversees the entire state, said that while their databases contain millions of names, they may not be able to make that confirmation.

If someone has sneaked into the country illegally and has not been deported, ICE would not have that person in its database. There also wouldn't be a database match if the person was using a fake name.

So if the worker is a part of an employer-sanctions probe, there may be no way to confirm whether the worker is here illegally, said Matthew Allen, special agent in charge of the Phoenix ICE office.

"In some cases, we may not know unless we go out and interview them," Allen said. "That is a very labor-intensive issue."

Some county investigators outside Maricopa County have come to ICE seeking the status of a worker but did not have the person's birth date or birthplace, making it difficult to check the name. ICE encouraged the investigators to do additional legwork. It also has asked prosecutors to work with illegal immigrants to go after the employers.

Allen declined to comment on the way the state's 15 counties are enforcing the law. But he said, "The employer gets the message when we are arresting employers."

In Pima County, there are so few complaints that County Attorney Barbara LaWall said she would rather use state funds earmarked for employer sanctions to crack down on child abusers. In one-third of Arizona's counties, there have been no complaints, county prosecutors said.

"For us it has been much ado about nothing," said Doyle Johnstun, a Cochise County deputy attorney. "My understanding is statewide it's (the number of complaints) down because of the economy. . . . The number of people coming across to find work is down."


The law as deterrent

Although no complaints have been filed against employers, Thomas said the law "has been a boon to the fight against illegal immigration in Arizona."

The law requires all businesses to use E-Verify, a federal Web-based program that checks employment eligibility, when making a new hire. Employers who don't use it face no punishment, but E-Verify strengthens their defense in court if they are prosecuted for knowingly hiring illegal workers. All 12 employers investigated by the Sheriff's Office this year told officers they were using E-Verify.

As of this month, 28,714 Arizona employers had signed up for E-Verify, which is more than a fourth of the 96,569 businesses participating nationwide, according to U.S. Citizenship and Immigration Services. The number in Arizona is triple what it was a year ago but still makes up only 19 percent of the roughly 150,000 employers in the state.

Allen said E-Verify has helped ensure that employers are not hiring illegal workers.

Pearce, the lawmaker, said there still are not enough employers using the system.

"I'm going to create some incentives for them to sign up," said Pearce, who declined to provide details. "To avoid hiring illegal workers is a must."

Pearce also said he may try to reduce or eliminate funding for county attorneys if they don't enforce the law.

During the past two years, the state has given $4.86 million to the 15 counties, more than half going to Maricopa County.

"Some county attorneys say they don't need it, and we don't have money to give to folks who say they don't need it," Pearce said. "We will not be funding those agencies that do nothing."

www.azcentral.com

Oh fgs. They should just arrest any employers who are caught with illegals in their employ. Simple as that. They know they are hiring illegals. It is rare that they dont know. And if they knew they could not claim to not know then the practice would stop.

I agree RedPony and the only way,if found to have IA employees they do not get arrested is if they have documented proof E-Verify was used..

In Maricopa County, where the law led to raids on a dozen businesses and the arrest of 159 workers and a manager, investigators have not been able to assemble enough evidence showing that employers actually knew the arrested workers were illegal, which the sanctions law requires



Oh, so they've finally figured this out,have they?

Sorry, but any law which contains the word "knowingly" is not going to hold the employer responsible because they have their out written right into the law.

They need to drop the knowingly crap.....these employers damned well "know"

I still say that if they can install safeguards on money to help fight counterfeiting, they can embed it in personal documents so that it could be easily checked, the same way money is, to be sure that it's not forged.

But does our government think of anything that simple? Nooooooo........

Originally Posted by redpony353

They should just arrest any employers who are caught with illegals in their employ.

I stood five feet away from Senator Grassley and demanded that from him right after the Postville, Iowa raid. He told me it is "Too hard" to file charges against business owners. I reminded him of the meth lab found in that plant and that the bosses should have been arrested for that too. Grassley got mad at me and changed the subject.

Grassley has accepted several $2,000.00 contributions from Agriprossors.....There is a fine line between contribution and bribe.

It is all smoke and mirrors.....they are letting all of this go until there is no turning back and the American citizens are sitting back and letting it happen.