Between a Rock and a Hard Place

In the midst of the current chaos caused by the Feds and their "no holds barred" enforcement efforts, one has to wonder if anyone in Washington is aware that they have effectively placed U.S. employers in a irreconcilable Catch-22, one which has the potential to disrupt our economy far beyond the sub-prime/housing sector mess by further destabilizing the agriculture, food service, hospitality and other sectors.

We can only look at the unfolding storyline from a given snapshot in time, and here is where we sit today: ICE is stalking the U.S. in search of employers with defective I-9 compliance, which is pretty much like scouring the beach for sand. (I can tell you that after 17 years of practicing immigration compliance law, I have never conducted an I-9 audit which failed to produce numerous defects.)

On top of the I-9 audits, we have the SSA regs looming as well.  Under the still pending "No Match" regulations, employers whose workers fail to straighten out their problem with the SSA within 90 days have to have a NEW I-9 prepared, non-reliant on the problematic SSN. If this becomes law, it will affect U.S. citizens far more broadly than illegal aliens, given the 80% accuracy of the government’s database and the fact that the inefficiency goes across the board; the 12 million estimated illegal workers in the U.S. are a drop in the bucket, and USC and legal workers will be scrambling to prove their innocence, having been pronounced guilty by a very, very flawed recordkeeping system.

In effect, the employer has two choices in the current federal enforcement reality:

  1. ferret out and terminate all illegal workers to avoid I-9 sanction and face charges of national-origin discrimination or
  2. sit tight and face up to $11,000 in fines and UP TO SIX MONTHS IN JAIL FOR EACH UNAUTHORIZED WORKER!

That’s you there, my good HR/Compliance/GC friends, potentially doing time.

But here is the bigger problem for the economy: those folks they rounded up at the chicken processing plants? They are there because very few Americans want to spend their days plucking and eviscerating poultry. Those guys with the hats and baskets in the Homestead tomato fields in the 95% Florida sun? They are there because despite the relative poverty of that city, Americans will NOT TAKE THE JOBS. Those Central American ladies smiling at you down the hall as they change the linen in another room?  They are there because the hotel can’t find American workers to fill those positions.

So it’s open season on employers and the USG is moving with a vengeance, all in response to the tragically flawed reasoning that Americans are losing jobs to foreign workers.  The enforcement threatens corporations as well as entire economic sectors…precisely at a time when food prices are racing out of control.

If you think our economy is in trouble now, wait till the repercussions of this mess reach consumers by early summer.  One lame duck and a complacent Congress pretty much guarantee chaos for the balance of this year…