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Q&A: A former labor watchdog on contractors, clients, and illegal hiring

The tools of a trade in which subcontracted labor is common, November 2009
The tools of a trade in which subcontracted labor is common, November 2009
Photo by TK/Flickr (Creative Commons)

The illegal hiring scandals that have landed both Meg Whitman and Lou Dobbs in hot water in the course of just over a week have placed a spotlight on the role of employers in illegal immigration, bringing up questions about how involved employers need to be in verifying workers' legal status, and whether it's even possible to avoid unauthorized workers in an economy that depends on low-wage help.

Both cases also raise questions about the role of the middleman - the employment agency or contractor who provides the workers. In GOP gubernatorial candidate Whitman's case, her ex-housekeeper, Nicandra Diaz Santillan, was hired through an agency. In the case of Dobbs, the ex-CNN anchor known for his stringent views on illegal immigration - and employers who contribute to it - the workers interviewed by The Nation, which broke the story yesterday, worked for contractors who provided services to Dobbs, on his properties and for his daughter's horses.

Subcontracting played a keypart in one of the biggest cases to date involving immigration law violations in the workplace. After immigration authorities found more than 250 contracted janitors working illegally in Wal-Mart stores in 2003, Wal-Mart officials denied knowledge of any wrongdoing, even though several of the company's cleaning contractors had admitted to hiring undocumented workers in the past.

In what became known in some immigration-related circles as "the Wal-Mart defense," the company washed its hands of the contractor's actions. In the end, Wal-Mart paid a record $11 million in fines, but escaped criminal charges. Contractors that provided janitorial services to the mega-chain did plead guilty to criminal charges, in addition to paying fines.

Subcontracting is prevalent in industries where unauthorized workers are heavily represented: janitorial services, agriculture, garment manufacturing and construction stand out. So today, I turned to a veteran and graduate of the janitorial industry, where subcontracting is the norm.

Javier Gonzales is a former director of the Los Angeles-based Maintenance Cooperation Trust Fund, a union-funded watchdog group that investigates illegal practices in the industry. An investigation by MCTF that began during his tenure was instrumental to a class-action lawsuit by subcontracted janitors who in 2004 won a $22.4 million settlement for back pay from three major grocery chains. Long involved with janitors as a union organizer, Gonzales is now executive director of Strengthening Our Lives, a non?profit Latino voter awareness group with union ties.

Gonzales provided his take on the middleman when it comes to hiring unauthorized workers, and the role and responsibilities (or not) of employers who use them.

M-A: What sort of problems does having this extra layer (a contractor) between employee and employer present? Does it provide a legal shield for the employer who hires an unauthorized worker, since employers must hire “knowingly” in order to violate the rules of IRCA?

Gonzales: Yes, this is a legal shield. The law forbids "knowingly hiring" of undocumented workers and "failure to verify." In both cases, while totally obvious, it allows each plausible denial.

M-A: What are the employer’s responsibilities when working with a contractor who does the hiring? Is it the employer’s responsibility to request legal work documents from the contractor?

Gonzales: Almost none. Only in industries that have had legislation requiring digging deeper, there is none. In household personal services there are none. In farming, if you use a farm labor firm, you must ask them or demand they comply with laws. The separation is golden for them in most cases, especially construction.

M-A: In what other ways does working with a contractor shield an employer from responsibility? Not just in terms of immigration law, but labor law, wages, etc.?

Gonzales: If the contractor does not pay in typical payroll,  and instead pays cash, there are great tax, worker's comp, etc. savings. In major cases against "clients," as the primary contractor is often referred to, the contract is so low, that there is no way that the work can legally be done at that price. This has begun to create a problem to clients, who in court are forced to often reveal that the work at that price was not possible without subverting laws.

(In the old days, the employer was the employer. When they subcontract, they become "clients.")

M-A: Realistically, is the real problem that employers get duped by contractors hiring unauthorized workers, or that employers turn a blind eye? How much of a factor is the bottom line?

Gonzales: Employers turn a blind eye. They have been helpful in these industries in setting the systems up, then disappearing. There are many "clients" who start consulting firms to help "guide" people through the process.

M-A: Given that our economy depends on low-wage help, is it even possible for employers to avoid bumping into an unauthorized worker somewhere down the chain?

Gonzales: It is impossible for anyone in America to not run into this. When we wash our cars, order food, take laundry, or add a room to our home, we are all a part of it. It is so out of control it is now the norm.

The key is what will it take to stop it? Right now most consumers benefit, but perhaps unskilled and uneducated workers are in peril. Immigrants have a sort of natural seven-year threshold (many academics have studied this) when they accept abuse. Post-seven years, as people learn English and learn about laws and other job opportunities, the immigrant fights back or moves on.

To the system, no big deal. Another one just crossed the border.