State attempts crackdown on undocumented immigrant workers
The raid on Sam’s Janitorial Service in Jefferson City in early March has been followed by a tough-sounding order by Gov. Matt Blunt and wide-ranging efforts in the Missouri State House and Senate to crack down on businesses that hire undocumented immigrant workers.
The workers at Sam’s Janitorial occupied the lowest rungs of employment in Jefferson City – jobs that a few years ago were the province of prisoners.
The staff vacuumed, waxed and polished in some of Jefferson City’s largest facilities, such as the Truman and Broadway state office buildings and Department of Conservation headquarters, although not the Capitol.
When they showed up in the Truman complex for an unusual staff meeting March 6, they were confronted with a phalanx of law enforcement officers rather than company officials. By the end of the evening:
• 22 members of the janitorial staff, mainly from Africa and Central and South America, had been arrested for suspected immigration violations. A week later, the acting U.S. attorney for western Missouri filed federal charges against eight workers from Mexico and Chile for possessing stolen or fraudulent Social Security cards or other documents.
• Federal authorities in Dallas said another eight posted bond to await deportation hearings while two more took the safe route and agreed to “voluntary departure” to Mexico, avoiding felony charges if they re-enter this country. Four others, including a juvenile released to his father’s custody, simply faded out of the system.
• Blunt held a rare night news conference to announce that he had terminated the company’s nine state contracts for cleaning operations in Jefferson City, Columbia and Kansas City – and barred it from ever getting another. The Columbia sites included Vandiver Drive and Heriford Drive offices for Missouri’s Board of Probation and Parole, Department of Economic Development, Department of Revenue and other agencies.
Blunt’s executive order issued March 6 declares a material breach of contract if any vendor hires an undocumented worker and allows the state to summarily cancel it.
His official announcement referred to a “no tolerance” policy, barring contractors that hire anyone in violation of federal immigration law, but the road ahead is littered with exceptions, self-enforcement and business opposition.
State contractor a vulnerable target
Employers likely to hire undocumented immigrants at low wages tend to be well aware of the system’s shortcomings.
The owner of Sam’s, which is based in Arkansas, quickly maintained that the company’s staff had produced the proper papers when hired, although the number awaiting deportation proceedings but not charged with fraud or identity theft raises doubts about that defense.
Vern Morris, the custodial supervisor for state facilities, noticed discrepancies in the janitorial workers’ I-9s, federally required employment forms, and supporting documentation after hearing rumors about their illegal status.
The rumors were not new. From the first days that Sam’s took a state contract in 2001, the part-time custodial staff was known for limited English proficiency. Suspicions arose about their immigration status, but targeting employees based on language abilities could have sparked anti-discrimination lawsuits.
Morris said the janitorial contracts in recent years had been based on lowest bids, and the state dropped its evaluations of work history and quality. State officials acknowledge that low-bid-only contracts demanding few work skills can tempt employers to hire aliens, who cannot afford to protest poor or illegal pay rates and employment policies.
Morris noted that the state relied on prisoners, who were paid little, for these janitorial services until the 1990s, when concerns about security prompted agencies to turn to private contractors.
System leaves identity theft undetected
The governor’s March 6 comments and his orders suggested that contractors can use a federal program – known as SAVE (Systematic Alien Verification for Entitlements) – to determine whether applicants have a legal right to work in the U.S. Private contractors can take the same steps that the state does to ensure that “every state employee was a legal worker in the state of Missouri,” Blunt said.
Missouri can fall back on the state Information Analysis Center—part of the homeland security apparatus—and its databases to try to investigate and establish probable cause that immigration violations have occurred and to secure federal law enforcement help, as it did with Sam’s.
Private employers don’t have those resources. A federal program overseen by the same Department of Homeland Security officials who manage SAVE is the lone safeguard for state contractors and their workers who now may find their jobs at risk if the companies employ undocumented aliens.
SAVE was enacted during 1986 immigration reform to allow federal, state and local governments to determine whether residents are legally qualified for benefits such as welfare, Medicaid, unemployment compensation and housing assistance. Employers do not have access to that database.
Congress in 1997 authorized the so-called “basic pilot” program under SAVE to allow employers in five states access to Social Security and customs data and extended it to all states in 2004.
This free program, though, does not truly show whether prospective employees are citizens or legal resident aliens with the right to work. It simply indicates whether the Social Security number that a newly hired employee gives matches the name he or she uses for the job; if the citizen is foreign born, Homeland Security sources will show if that person has work authorization papers—sometimes.
The basic pilot program fails to detect whether an immigrant’s status is in flux or whether workers have “borrowed” or stolen identities from the cards’ legal owners, as did almost half of the Sam’s Janitorial Service workers who were arrested. Because the Internal Revenue Service is prohibited from cooperating in the program, employers cannot determine whether persons working elsewhere are using the same names and numbers.
In the basic pilot program, companies also are not allowed to use the system to determine whether employees on board when the firms signed up can work legally.
The program also requires employers to hire the person before conducting the check. At that point, businesses have three days to verify Social Security and customs data. For residents born outside the U.S., error rates can soar because of delays in updating federal databases.
Congress last year declined to require all national employers to use the system at an estimated cost of $1 billion. Opposition came from labor groups, large business lobbies and civil liberties organizations that feared privacy violations.
Blunt opts against requirement to catch unauthorized workers
The Blunt administration decided not to require companies under state contract to use the basic pilot program as part of their hiring process, mainly because it cannot detect identity theft and fraud.
The state does clear its new hires through this program, but participation across the country is spotty at best. Although the total doubled last year, only 12,000 businesses nationwide process their new employees through the program.
Rich AuBuchon, the deputy commissioner and general counsel for the Missouri Office of Administration, said state officials “seriously considered” requiring all contractors to use the program but discarded the approach because of its shortcomings. Contractors “are encouraged, but not required” to use the basic pilot program, he said. “It’s one more means of due diligence without creating a heavy workload.”
In late March, the state instead decided to require all contractors to turn in copies of their employees’ federally required employment (I-9) forms and documentation, and state agencies will audit them for discrepancies, possibly detecting the hiring of unauthorized workers.
AuBuchon said he expected state agencies to take “several weeks” to complete the review of all their agreements, which cover hundreds of contracts and thousands of contact workers.
He said the state wanted to avoid being “overly burdensome” with its requirements and will allow contractors themselves to identify which employees work predominantly under state contracts..
“We don’t want to have a company with 10,000 employees and maybe only 50 involved with state contracts to turn in all that paperwork,” he said. “We don’t need documentation on workers who just support people who work on state contracts.”
AuBuchon, however, expects almost blanket coverage of any contractor’s employees who physically work full- or part-time on state property, such as custodial staff or private guards. But that approach essentially will allow contractors to self-enforce state audit requirements. With the ability to choose which employees’ documentation it submits, companies would be unlikely to turn in paperwork on employees suspected of working illegally in the U.S.
Blunt’s comments on “no tolerance” and orders about terminating contractors that hire undocumented workers have a bark worse than their bite. Despite his public comments, his executive orders do not require the state to cancel contracts if the officials find undocumented staff have been employed.
Sam’s likely fell victim to the new state attitude because it egregiously hired so many workers alleged to have violated federal laws on immigration, identity and work.
AuBuchon said the contract language already has been rewritten for insertion into new and renewed contracts. He said the changes simply will insert specific references to breaches of federal immigration law as grounds for termination.