JOSHUA BERMAN — Gregg Easterbrook, author of the Tuesday Morning Quarterback (“TMQ”) blog on ESPN.com, is a snarky sort of fellow who weaves old movie references and reporting on the “Unified Field Theory of Creep” (the unseasonably early commercial offerings of (mostly) holiday goods) into his digest of the previous weekend’s football analysis.
His Week 6 post praises Mickey Kaus for composing the week’s best tweet: “Federal law forbids hiring anyone who is in the country illegally. A new California law forbids firing anyone because they are in the country illegally.”
The tweet raises three interesting issues: (1) the law’s business implications, (2) the intent of the California legislature in enacting the law, and (3) how the Supreme Court would reconcile these laws.
As for the obvious business implications, it would seem that a business may be grandfathered/locked into employing an illegal alien. Having such an undocumented employee on the payroll may lead to fines by the federal government for that hire, or incur California penalties for firing that employee.
The circumstances that give rise to this conundrum are undoubtedly rare and therefore demonstrate that this isn’t, as Governor Jerry Brown suggests, “California’s forging ahead” of the federal government on the immigration issue a la Arizona in 2010. Here is an NPR summary of what California legislated through a series of new laws:
- Law enforcement is forbidden from detaining for deportation illegal immigrants for minor, non-violent crimes.
- Illegal immigrants may apply for California driver’s licenses.
- Subject businesses to fines and, in severe cases, the loss of their business licenses where employers threaten employees with deportation.
- Permits illegal immigrants (like attorney Sergio Garcia), to receive professional licenses
Before diving into the issues, there are a few facts you should know about illegal aliens in the workforce. A 2005 study by the Urban Institute Immigration Studies Program tells the story of six million undocumented workers (five percent of the total number of U.S. workers) participating in the labor force, including 96 percent of men in such a situation. Further, undocumented workers earn considerably less than their citizen counterparts.
Part of the reason for the pay gap between citizens and undocumented workers is explained by Michael Grabell for ProPublica. Latinos (which he seems to equate to undocumented workers in this instance) make up 20 percent of all temp workers, many of whom must get by on minimum wage without benefits. “In many temp towns, agencies have flocked to neighborhoods full of undocumented immigrants, finding labor that is kept cheap in part by these workers’ legal vulnerability: They cannot complain without risking deportation.”
The job hunting website Monster puts in plain language the requirements of federal law on the issue of hiring noncitizens who live abroad to work temporarily in the country:
Employers who want to hire noncitizens who live outside the United States to work temporarily in the US must show their actions will not negatively affect the job opportunities, wages or working conditions of workers already residing here by demonstrating there are not enough such workers available and that the proposed wages and working conditions meet regional standards.
The employer must also actively attempt to recruit workers already residing in the US to fill the position, including newspaper and radio advertising. Employers must also provide free, approved housing for workers unable to go home each day, as well as certain types of transportation, workman’s compensation or equivalent insurance and appropriate tools and supplies at no cost. Employers must also show that the position is not open because of a strike or lockout.
It is worthwhile to point out that Monster does not address the notion of hiring noncitizens who live in the country to work, probably because federal law prohibits such practice.
The Department of Labor offers three guides to employment law as applied to noncitizens, one each for temporary agricultural workers, temporary nonagricultural workers, and for employees to be permanently employed based on immigration. The abridged version of the procedure is that hiring foreign workers is incredibly laborious: essentially, the employer has to file an application showing that there is a shortage of domestic workers who are “able, willing, qualified, and available” to meet the employer’s needs, and the employee must file a number of immigration forms for approval by the Department of Labor.
Given the hoops an employer must jump through in order to hire an individual, it would be a leap to suggest that an employer might not know his employee’s citizenship status. The penalty for unlawfully employing an illegal alien is governed by 8 U.S.C.A. § 1324(a), and may be monetary or nonmonetary in nature.
Now here is the fun part: § 1324(a)(2) provides that “[it] is unlawful for a person or other entity, after hiring an alien for employment in accordance with paragraph (1), to continue to employ the alien in the United States knowing the alien is (or has become) an unauthorized alien with respect to such employment.”
Here, then, we find the obvious conflict between the federal and California laws. As Mr. Kaus alluded to by hashtagging “preemption” in his tweet, the Supreme Court will very likely rule that the California law is nullified by the presence of the federal law. Federal law “preempts” state law based on the Constitution’s Supremacy Clause, and the continued employment of an illegal alien is very clearly an example of conflict preemption.
The idea of actual conflict preemption was ruled upon in the 1983 case Pacific Gas & Electric Co. v. State Energy Resources Conservation & Development Commission, 461 U.S. 190 (1983). There, California Governor Ronald Reagan banned new construction there of nuclear power plants pending the creation of a waste disposal technology. The Court held that the state legislation did not conflict with the federal law (which governed the creation of nuclear power plants). This case can be distinguished from the matter at hand because we can show, quite intuitively, an actual conflict wherein compliance with state and federal laws would result in a penalty.
While the state law will likely be nullified, California’s flouting of federal statutes is a great example of why immigration has been such a hot national topic for the past couple of years. Until the federal government reforms its immigration statutes and exerts its continued authority over the immigration field, states will likely continue to attempt to exert autonomy.
