Jottings By An Employer's Lawyer

Tuesday, April 01, 2003

Oh Those I-9's, and the Criminal Law - Another Case Where the Employer is In The Middle

In 1986 (could it really have been that long ago?), the Immigration Reform Control Act was passed making it illegal for an employer to hire undocumented aliens, but also increasing penalties for discriminating against individuals because of their national origin. The way to avoid being caught in the middle was the now infamous I-9. [pdf]. But what was not accounted for was the tremendous boon in the false document market. Or at least that was what a jury apparently believed in acquitting Tyson Foods' of criminal charges of conspiring to hire illegal workers. As reported by the AP part of the company's defense was the Department of Justice brochure, Look At The Facts, Not the Faces. [pdf]. As one juror noted, there was just too much "gray area" for employers. Too often when society has goals that are not aligned -- prevent illegal immigration but don't discriminate because of national origin -- employers are left to sort it out. When it becomes criminal for getting it wrong, it may be time to rethink the issue.

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