• Columbia Farms Case Shows Need for New Immigration Policy
  • December 16, 2009 | Author: Allen C. Ladd
  • Law Firm: Constangy, Brooks & Smith, LLP - Greenville Office

    Employers take note: There's a price to pay for hiring aliens illegally. In the case of Columbia Farms, it was about $1.5 million. That's the figure the management has agreed to pay in fines to settle all civil and criminal charges against the company, following the October 2008 raid on its Greenville plant by U.S. immigration enforcement personnel.

    In the aftermath of the raid, 300 former employees or "illegal hires" were deported from the United States. Viewed in this light, the $1.5 million settlement works out to an average of $5,000 per illegal employee.

    But this does not encompass the total costs to the company. There are the legal fees to defend against federal criminal and civil prosecution and unfavorable publicity and damage to its reputation. Plant operations were disrupted as a result of the search, which caused a mass dislocation of its workforce. And then there is the unknown but very real human toll for the former employees and their families, while remaining employees likely worried about their future employment.

    Recent government efforts have almost ensured that this scenario will repeat itself for other employers. The Obama administration has stepped up worksite enforcement, and as of July, several hundred employers had been targeted. Last year alone, even before stepped-up enforcement, more than 350,000 illegal aliens were returned to their home countries. More than two-thirds of these were through formal "removal" (deportation) proceedings initiated by the Department of Homeland Security. In the same period, the government secured more than $20 million in criminal fines, penalties and forfeitures against employers in worksite enforcement cases. And Homeland Security launched an initiative to bar companies with employment violations from receiving federal contracts.

    Here in South Carolina, a 2008 law authorizes the state Department of Labor, Licensing and Regulation to investigate and punish violations by businesses that are public contractors or that employ 100 or more individuals.

    To stay compliant, employers must verify applicants' identity and "employment eligibility" through use of paper (Form I-9) and/or electronic measures (E-Verify) and maintain appropriate documentation of this verification process at the worksite, while at the same time avoiding discriminatory hiring practices.

    While the Columbia Farms raid is important for reminding employers of their legal responsibilities, it also reveals a serious structural flaw in our immigration system: the absence of a satisfactory work visa program for skilled and unskilled workers. This is unfortunate, at a time when the American economy needs to become robustly competitive again.

    In his book, Let Them In, Wall Street Journal editorial board member Jason Riley makes the argument for changing the immigration laws, to create a program that would give employers greater freedom in employing workers. He contends that "our public policy makers would do better to put in place free-market mechanisms - such as viable guest worker programs - that allow the law of supply and demand to determine the level of immigration."

    A viable guest worker program, Mr. Riley writes, "would have the added benefit of making us safer from a homeland security standpoint. Instead of chasing down people who come here to burp our babies, mow our lawns, chop off chicken heads, and otherwise get a better return on their human capital - just as immigrants immemorial have done - our limited homeland security resources could be used to chase down real threats."

    In light of these restrictions of the current employment-based immigration system, immigration reform must go well beyond successful worksite enforcement efforts, which leave law-abiding employers stranded, without productive skilled and unskilled labor they need to run their businesses successfully and leave our national economy suffering. On the international level, the inevitable result will be unfortunate: The United States will lose its productive fiber and muscle.

    It has been said that nothing can resist an idea whose time has come. Any common-sense proposal for immigration reform must include a guest-worker program. Security, resources, productivity, competitiveness - for these reasons, I believe we can do no less, to protect our national interest.