This is the summary of a new report by George Fishman on a proposal to evade the prohibition on the employment of illegal aliens. See the full report here.
- The Harvard Law Review, the No. 1 ranked law review in the U.S., recently published a piece suggesting that the City of Burlington, Vt., engage in “active resistance against a federal immigration system that illegalizes undocumented work”. How can Burlington join La Résistance? Burlington can un-illegalize undocumented work! (Or so the article claims.)
- The law-student-written piece acknowledges that the Immigration Reform and Control Act of 1986 (IRCA) established “employer sanctions” making it unlawful for employers to knowingly hire or employ aliens unauthorized to work under federal law and requiring employers to review the identity and work authorization documents of all new hires. But the piece proposes that Burlington simply retain as independent contractors, rather than hiring, the unauthorized aliens whose labor it seeks, in effect opening up a Burlington Fraud Factory.
- The author of the piece, and the HLR cite-checkers, apparently failed to notice language in IRCA itself specifying that “a person … who uses a contract … to obtain the labor of an alien … knowing that the alien is an unauthorized alien … shall be considered to have hired the alien for employment” Congress added this language to guard against, yes, “loopholes which enable the use of subcontractors to avoid liability”. And when the Immigration and Naturalization Service issued regulations implementing IRCA, it made clear that while “Those who engage the labor services of an independent contractor are not responsible for verification of the employment eligibility of the [contractor’s] employees … contracts may not be used for the purposes of circumventing the employment eligibility verification requirements.”
- Not only that, but the HLR piece blithely recommends to Burlington that it use independent contractors to evade federal immigration law without even mentioning the risks of doing so to Burlington’s human resources staff and other city officials. Violations of the knowing hire ban carry civil as well as potential criminal liability and have, in fact, resulted in imprisonment.
- Lest one think that Burlington can simply pull a Sergeant Schultz and say “I know nothing!”, as the 9th Circuit has instructed, “deliberate ignorance counts as knowledge”, as when “the defendant is aware that the fact in question is highly probable but consciously avoids enlightenment”. And “constructive knowledge” — what a reasonable and prudent employer should know — also counts as knowledge. As an article in another law review has concluded, “[t]he constructive knowledge standard … indicates that an employer could be held liable for the hiring practices of an independent contractor if it has adequate notice that the contractor is employing illegal aliens.”
- I would suggest that the City of Burlington cancel its subscription to the Harvard Law Review. Or, at the very least, it should take any advice the journal sends its way with a grain of salted caramel Ben & Jerry’s.