Cleaning Up a Dirty Business

By W.D. Reasoner on August 13, 2012

The Reuters news agency, among other media outlets, reported last week on a decision of the federal Third Circuit Court of Appeals in Zavala et al. v. Wal-Mart Stores Inc.

The circuit court decision, favorable to Wal-Mart, declined to certify a proposed class action lawsuit against the corporation. The lawsuit alleged unfair labor conditions approaching peonage used against janitors, many if not most of them illegal aliens working for subcontractors to Wal-Mart, cleaning stores after hours throughout the nation. The would-be plaintiffs were the janitors themselves.

The decision, of course, leaves the janitors free to individually file civil suits, but it pretty much takes the wind out of the sails of a suit that had the capacity to seriously damage the company many Americans love to hate but continue to shop at, if profit margins are any indicator.

The decision leaves much to ponder:

First, I wonder why this matter appears to have been pursued solely as a civil matter. There are many federal laws penalizing the types of actions alleged here. (See, for instance, the statutes prohibiting and criminalizing peonage (18 USC § 1581); involuntary servitude (18 USC § 1584); forced labor (18 USC § 1589); and transporting, harboring, and shielding illegal aliens (8 USC § 1324).) While the Third Circuit addressed several of these thorny issues with regard to Wal-Mart itself, and only in the context of this civil suit (finding for instance that exit doors at Wal-Mart stores are unobstructed and readily opened, casting doubt on the janitors' claim that they were locked in during cleaning shifts), many questions were left untouched. For instance, what kind of duress or threats of force the janitors may have been subjected to by the subcontractors' foremen and on-site supervisors during those shifts, where and how they were housed between shifts, and the nature of their pay arrangements. But we will never know because, for lack of a criminal investigation, no violations will likely be established at this late date — the case is almost a decade old.

Although the genesis of this case was long before the current administration took office, the current outlook is, if anything, worse than ever where serious investigative and enforcement actions in the workplace by federal immigration authorities are concerned, because this administration has chosen to lead from behind. Early on in this administration, ICE issued policies for their investigative workforce that specifically abandoned worksite raids, primarily in favor of paperwork audits.

Department of Homeland Security (DHS) and Immigration and Customs Enforcement (ICE) officials in this administration have persistently asserted that they have foregone the use of enforcement actions (raids) at the workplace so they could concentrate on higher-level offenders, including egregious employers who subject their employees to the kind of indentured servitude described in the complaint.

I am left puzzled as to how you do that when you forbid agents to get their hands dirty by actually arresting aliens at their places of employment — even when it is in the interests of the aliens to be detected at the worksites because they are being held against their will or otherwise subjected to serious abuse. Arrests lead to interrogations and debriefings. These in turn lead to witnesses and informants — exactly the kind of thing needed to move from simple worksite actions to complex criminal investigations of the type DHS and ICE claim that they are interested in.

I'm told that it took months to develop the agency's worksite enforcement policy memorandum. I hope with all my heart that isn't true because it would grieve me immensely to think that a federal agency labored so long to produce such a sad, sterile piece.

I want to make clear that I'm not against audits; they, too, are a tool in the investigative toolbox. But just as you don't use blunt force when a precision instrument is needed, neither should you be forced to try to hammer a nail with a screwdriver. Let's face it: You don't often make serious criminal cases of the type alleged in the court filings in this civil case from paper audits often conducted in the sterile environment of human resources offices. Taking away the important tool of worksite actions appears to me to have been done solely to ameliorate the odd bedfellows of illegal alien advocacy groups and certain industrial and agricultural associations. All the rest of the verbiage in the policy memorandum is just smoke.

The other thing I have been reflecting on is the seemingly pervasive, and surely perverse, notion that the deliberate (or even willfully negligent) hiring of illegal aliens is a victimless offense. It's not. Aliens are often subject to abuse by unscrupulous employers and left unpaid or underpaid, subjected to substandard or even dangerous housing, and exposed to hazardous pesticides and chemicals. Nor is hiring illegal aliens helpful to the country's economy, with a persistently high jobless rate for lawful workers (8 percent or higher) spanning several years now.

Think hiring illegal aliens to do our dirty work is easy, clean, and cheap? Ask Wal-Mart. It took them nine years, and almost certainly hundreds of thousands of dollars in attorneys' fees and litigation costs to reach the present outcome (which, as I mentioned, still doesn't foreclose individual plaintiffs from suing).