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Photo by ttarasiuk/Flickr (Creative Commons)

The tools of a trade in which subcontracted labor is common, November 2009

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.

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A story that appeared today in The Nation, since reported elsewhere, alleges that undocumented immigrants worked for former CNN host Lou Dobbs, tending to his properties and to his daughter’s prize horses. The story has since been picked up by several other news outlets. Dobbs is best known, of course, for his extremely strict position on illegal immigration, which has included advocating criminal penalties for those who hire unauthorized workers.

The former host of Lou Dobbs Tonight has since criticized the liberal magazine’s investigation as a “hit piece” and denies having hired illegally, making the point that it is not his responsibility to check papers. According to The Nation, which interviewed five people who allegedly worked for Dobbs while undocumented, the workers were hired by contractors.

Still, given Dobbs’ famously restrictionist position on the show, which he left last fall, the reader comments left on the CNN website and numerous other sites have been impassioned ones, whether blasting Dobbs or in his defense.

And snarky too, like this one by a commenter identified as “hkchas” on the CBS News website, referring to the similar scandal last week that involved an undocumented housekeeper employed by GOP gubernatorial candidate Meg Whitman, who has railed against illegal hiring:

“Perhaps Lou & Mage (sic) Whitman use the same staffing firm?”

Some sided with Dobbs, like “baronis,” who posted a comment on the CBS site:

“The liberals are good at stretching the truth. The customer is not responsible for verifying identities of subcontractors or employees of an agency. So you liberals out there had better check the credentials of whoever wipes down you car at the local carwash or you may be held as responsible for hiring an illegal alien.”

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