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Immigration Mess A Patchwork Quilt of Compliance Myriad state immigration laws create a very messy compliance scenario for contractors By Mary Buckner Powers
Changes in federal immigration laws seem unlikely this election year, which means contractors must continue to deal with states trying to address on their own the issue of undocumented workers. Last fall, 1,500 pieces of legislation were introduced in the 50 states dealing with immigration, says Kelly Knott, the Associated General Contractors’ director of government affairs for labor, safety and risk management. Not every state has passed laws on its own, but the conflicts among those that have and the angst the laws have caused contractors reinforce the need for one unifying federal law. Says Knott, “It’s a mess.” States’ Rights? One example Knott cites is Illinois, which passed a law in August that the Dept. of Homeland Security says “effectively” prohibits employers from using the federal government’s Employment Eligibility Verification System, or E-Verify. Arizona, on the other hand, requires contractors to use E-Verify. “At some point, a contractor is in violation of some state law,” Knott says. Illinois has felt the wrath of the federal government for its attempt to go it alone. Its law, which was scheduled to go into effect on Jan. 1, 2008, prohibits employers from using any verification system until that system can accurately determine a job applicant’s legal status 99% of the time. The state claims E-Verify is flawed and its database is full of errors. DHS, which maintains E-Verify, filed a legal action against the state and asked that the law be declared illegal. In December state officials agreed not to enforce the law until the lawsuit is resolved. In Arizona, a federal judge in February refused to block enforcement of a state law that penalizes employers who hire illegal immigrants, while opponents appeal their case to the 9th U.S. Circuit Court of Appeals. The law took effect on Jan. 1. All state business owners risk losing their state and local licenses if they knowingly or intentionally hire undocumented workers. Licenses can be suspended for up to 10 days if an employer knowingly hires an illegal worker for a first offense. For all second offenses, licenses will be revoked. The law is to be treated as a “law-enforcement priority,” which means prosecutors must review every complaint, and the attorney general must compile a public database of employers who violate the law. The statute requires all employers in Arizona to use E-Verify to check the legal status of newly hired workers. Sundt Inc., Tempe, has been verifying new hires through E-Verify for eight years. “We were part of the pilot,” says Wayne Oliver, Sundt’s director of corporate compliance and diversity. Sundt used E-Verify in California originally and in other states where the firm had jobs, and “we found it to be a good program,” he says. It is the possibility of having their business license taken away that has the contractors in Arizona upset, Oliver says. “That’s tougher than the federal law,” he adds. “The federal government will debar a company and not allow it to bid on federal projects, but it doesn’t take their license to work away.” Sooner Exodus Oklahoma’s constitution says that immigration is a federal issue, but that did not deter the state’s legislators, says Dick Anderson, executive vice president of AGC of Oklahoma’s building chapter. The law there is considered to be one of the toughest in the country. It requires employers to check new employees’ legal status using E-Verify and makes it illegal to knowingly provide employment to illegal immigrants, or fire a legal resident and allow an illegal immigrant to stay on the job. It also makes it a felony to transport an illegal immigrant. The new law has caused illegal immigrants to leave the state, but it also has caused many legal workers to leave, Anderson says. “The Hispanic community perceives that it will cause a wholesale roundup of workers who will be sent back to Mexico,” he adds. Some legal workers worry that their illegal family members might be caught up in the crackdown, and many have packed their bags and moved to neighboring states, Anderson says. About 20% of the total workforce in Oklahoma is Hispanic. That number excludes the licensed trades, according to Anderson.
Larry Creekmore, president of paving contractor Creekmore Builders, Tulsa, says the number of applicants to work for his company has dropped 70% since the new law went into effect in November. The number now has stabilized, he says. “The problem is there are not a lot of Americans stepping up to fill these jobs,” Creekmore adds. “We’ve run ads and we’re not getting responses.” An estimated 12,000 of about 60,000 Hispanic residents have left Tulsa, says Xaviera Nadia, a construction executive and Hispanic Chamber of Commerce member. “The new law has caused people to be living in fear,” he adds. It was well intended but not well thought-out, Nadia says. “It tried to address a federal issue, and the outcome was bad.” The law went into effect in November for state construction jobs. It will take effect on July 1 for private jobs. Utah has used the Oklahoma law as a model for proposed immigration legislation, and others consider it a benchmark for immigration reform, says Oklahoma AGC’s Anderson. Under Georgia’s new immigration law, the requirement to verify the legal status of workers is being phased in through 2009. The conflict there is Gwinnett County in suburban Atlanta, which passed an ordinance that makes contractors responsible for their subcontractors’ employees. A contractor must direct its subcontractors to fire anyone whose legal status cannot be confirmed with a verification system. “We have no means to verify them,” says Mark Woodall, director of government affairs for AGC’s Georgia Branch. The chapter and Georgia Utility Contractors Association filed a lawsuit against the county. Colorado has an unusual circumstance. State law there requires all contractors that work for any state or local government agency use E-Verify to certify a newly hired employee’s legal status. The problem is that some municipalities and counties are self-governing and do not have to follow the state’s verification law. “We have a bumpy playing field, with some [players] that have to follow the rules and others that don’t,” says Mark Gould, president of Gould Construction, Glenwood Springs. Because Gould uses E-Verify for its work with government agencies that require it, the company must use it for every job. “Once you get into the system, you have to verify every employee,” Gould says. Gould’s biggest worry is in counties and municipalities with home rule and on some private jobs where his firm must compete with companies that do not verify their workers. Although Gould is located in Glenwood Springs and has built many projects there, he no longer bids work from the city because of its home-rule status. “It’s kind of crazy,” he says.
Gould has been criticized for his public stance on immigration reform. He has commented often about his frustration at not being able to hire U.S. citizens to do hard labor. “The immigrants are here only because there are not enough workers in the U.S. to do the jobs,” he adds. “We are having a tough time filling positions. It’s about the availability of semiskilled workers, the guys at the end of the shovels.” Gould favors complete immigration reform. “It’s terrible to have a hodgepodge of state laws,” he says. “We just want a good supply of safe workers.”
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