On April 17, 2008, 311 undocumented workers were taken into custody by ICE from five different Pilgrim’s Pride plants in Texas, West Virginia, Florida, Arkansas and Tennessee. Recently, 59 people were apprehended and put in line for deportation from a resort hotel in Loudon, Va. Fines against the resort are pending. ICE’s policy titled “Endgame” details its “detention and removal plan for a secure homeland.” The endgame referred to in the title is defined as “the removal of all removable aliens” by 2012.
Now, let’s be very clear about some demographics here. There are an estimated 45 million Latinos in the United States. It is the third-largest Spanish-speaking populace in the world after Spain and Mexico. Of these 45 million Latinos, 12 million are estimated to be undocumented, while 33 million are here with legal or citizenship status. This means that 73 percent of Latinos in the United States are here with legal work status or with citizenship. This may surprise you, but 45 percent of the undocumented in this country did not cross the border; they came on a legal visa and overstayed their visa.
My purpose here is not to make a political statement, one way or the other. I will leave that to the conscience of each individual. No matter a person’s view, there is no doubt a very difficult tension here between the rule of law and humane treatment of our fellow human beings. There are also deep issues of Latino heritage and history in the American culture. This is an issue that, no doubt, with a new president, this country will deal with on a national basis.
It is clear that for people to live in fear (whether employers or undocumented workers) is not a good thing. Sometimes we just want to make a problem go away, but by trying to make it “go away” we actually make it worse. My purpose here is to give you some practical guidance to wade through these troubled waters.
Recently, I did some consulting for a large construction company in Texas that had more than 20 key employees in the country on work visas and they could not get the visas renewed. Many of these people had grown into supervisory positions. They not only had to let them all go, they had to replace them. You can imagine the turmoil in this company. My job was to help them minimize the damage, figure out how to replace those people relatively quickly and move forward.
I do believe we will see comprehensive immigration reform in 2009 no matter who is our next president. I know for a fact that high-level leaders in both political parties are pushing for this eventuality.
The only way in which you could absolutely know if you are hiring a legally documented workforce is if you enroll in Homeland Securities E-Verify Program. You can do so voluntarily. Make sure you understand the ramifications of doing so before you run off to do this, especially if you have an existing Latino workforce that may include people who do not have proper legal documentation.
If you enroll in the E-verify program, it will apply to all employees, both present and future. The risk of you losing a significant portion of your workforce is real if you start checking out these numbers in this manner. The other thing that can happen is that word spreads very quickly in the Latino populace, and you may find it next to impossible to even recruit legally documented Latinos. The Latinos are, for the most part, sticking together on this issue. I have even met several Puerto Ricans, who are all legal citizens of the United States, taking up this cause on behalf of people from other Latin American countries.
Outside of enrolling with Homeland Security, your other option is to wait it out. If you try to figure it out on your own by asking probing questions, profiling language skills, checking birth certificates, etc., you are on a very precarious slope waiting for a discrimination lawsuit to be slapped against you. Trust me, there are many Latino attorneys seeking out these types of cases. Remember, it only takes you being wrong one time in your assessment of who you think is actually presenting legal documentation and who is presenting false documentation.
If you do not enroll in E-Verify, you are still stuck with the same I-9 laws that have applied now for many years. The Catch-22 is obvious. Many times, even if you follow the law, you can actually be hiring an undocumented workforce, and this exposes you on other fronts. To view what you can and cannot do in detail, I would refer you to the following Web page to read a very good explanation by the U.S. Department of Justice:www.usdoj.gov/crt/osc/txt/emp_g.txt. This is written in a way that is easily understood by non-attorneys.
The OptionsSo, you essentially have three options:
1. Wait it out. This probably makes the most sense given all the circumstances.Just keep doing what you are doing and take the middle ground. It is probably the safest route.
2. Enroll in the E-Verify program.If we do not get comprehensive immigration reform in 2009, I would seriously consider doing this as we move forward. If you do it now, just be aware that you stand a chance of losing a portion of your present Latino workforce. If you do not presently have a significant Latino workforce and want to get into the market, it might be wise to go ahead and enroll in the E-Verify program. This way you are sure you are hiring a legally documented workforce going forward.
3. Don’t hire Latinos.This is a very bad idea for two reasons. First, you could get hit with a serious discrimination suit, which would not be good for business. Second, the Latino workforce is the largest labor force in the country, and you’ll be walling yourself off from a lot of hardworking, loyal employees.
By the way, and I think this reminder is very important for some people, the Latino labor force also includes a significant number of professionals who are business leaders, attorneys, doctors, entrepreneurs and even several Fortune 500 executives. You may even have a Latino or two in your organization who started out in labor but moved up to a supervisory or superintendent role. Our present Secretary of Commerce, Carlos Gutierrez previously held the post of CEO of Kellogg’s. Let’s make sure we have a clear idea of the Latino culture, which is not only a “labor class” culture in the United States.
I am reminded of a story I heard recently from a friend of mine. When she came to the United States for the first time years ago from Colombia, she saw her grandfather’s hands and was emotionally moved. His hands were cut and rugged. He had found a job in a factory working with glass. The reason she was so shocked? When he left Colombia, he was second in line for the presidency.