Wal-Mart has made headlines: Government officials conduct Wal-Mart sting operation. Sweeping raids in more than 20 states. As many as 250 illegal immigrants arrested. Wal-Mart has received bad press and faces possible civil fines and even criminal penalties. According to the press, Wal-Mart may face class-action lawsuits, corrupt practices and RICO violations. But this involves Wal-Mart. How could it impact a highway contractor?
Knowing RICO
In 1970, Congress passed the Racketeer Influenced and Corrupt Organizations Act (RICO) in an effort to put the Mafia out of business. But by 1996, Congress expanded its original goal and added Immigration and Nationality Act (INA) violations to the potential RICO offenses. For example, in general it is unlawful under the INA to encourage illegal immigration or employ 10 or more illegal aliens. A court may determine that a company with a pattern of encouraging illegal immigration or employing illegal aliens is practicing racketeering activity for financial gain. The court may hold the company both criminally and civilly liable under RICO. Today, RICO is almost never applied to the Mafia. Instead it is being used against businesses and individuals guilty of violating certain laws.
In a few months, the U.S. Supreme Court will hear a RICO case where current and former hourly employees sued their employer for employing illegal aliens in violation of immigration laws. In Williams v. Mohawk Industries, the employee plaintiffs claim Mohawk Industries brought illegal workers to a North Georgia carpet mill in an attempt to depress the wages it pays legal hourly workers. The employees allege Mohawk knowingly hired illegal aliens, with actual knowledge of their illegal status, for financial gain, which is a RICO violation.
The trial court found the employee’s RICO claims survived Mohawk’s motion to dismiss. Upon Mohawk’s appeal, the Eleventh Circuit Court of Appeals held that Mohawk’s recruitment and hiring of illegal aliens constitutes a “pattern of racketeering activity,” making it potentially liable under RICO. Now the case goes to the Supreme Court for the ruling on the employee’s INA and RICO violation claims.
In December, the spotlight turned to House Bill HR4437, the Border Protection, Antiterrorism, and Illegal Immigration Control Act of 2005, or Sensenbrenner Bill. After passing in the House on Dec. 16, the Senate took it up for consideration in February. If passed it will impact your contracting business.
The Sensenbrenner Bill’s most sweeping provision would require your company to submit Social Security numbers and other information to a national database to verify the legal status of workers or risk paying severely increased penalties of as much as $25,000 per immigration violation.
Like most Americans, contractors support strengthening our national security and adherence to the rule of law. At the same time many contractors are faced with current and future labor shortages. The question about the Sensenbrenner Bill, and its future counterpart in the Senate is: Is this approach comprehensive in addressing current economic and future labor needs?
Current immigration law enforcement activity, recent immigration related RICO court cases and both existing and new Congressional legislation will continue to impact the highway construction industry and your company.
Like most legal issues, it will be no defense to say that everyone else is employing illegal immigrants. It also will be a weak defense to say you didn’t know when you made no effort to find out. The best protection for your company is to take a proactive approach to determining immigrant workers are legally in the U.S.
