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Should Illegal Aliens Be Able to Sue U.S. Employers for Labor Racketeering?
Q: Should Illegal Aliens Be Able to Sue U.S. Employers for Labor Racketeering? No: Such Lawsuits Subvert Our Legal System and the Nation's Border-Control Policy.


by Matt Hayes



Byline: Matt Hayes, SPECIAL TO INSIGHT


Upton Sinclair's The Jungle, published in 1906, shocked turn-of-the-century Americans with its descriptions of the horrific plight of workers mostly recent immigrants from Europe in Chicago's stockyards and slaughterhouses. In his true-to-life, social-protest novel, Sinclair showed how the beef industry had sacrificed everything to the bottom line, placing profits above people and creating universally appalling working conditions for its labor force.


Americans were outraged not only because we believed we had avoided England's Industrial Age mistakes, illustrated so well by Sinclair's forerunner, Charles Dickens, but also because we believed that in all things America should be different and better.


Publication of The Jungle marked the beginning of a new era of raised social consciousness and widespread activism on behalf of exploited workers, bringing about firm and needed restraints on capitalisme sauvage. The creation of child-labor laws and other worker protections kept naked market forces in check and prevented the most blatant exploitation.


One of the most notable worker protections of that time came from a national recognition that a tight labor market is a worker's best friend, and Congress implemented a much-needed time-out from the immigration America had been absorbing for decades. The resulting 40-year lull in immigration removed the primary mechanism an excess of cheap labor by which U.S. industry had been able to drive wages to unacceptably low levels.


Sinclair made his mark, but it was only temporary. The raids staged recently at 61 Wal-Mart stores around the country resulted in the arrests of some 250 illegal aliens in 21 states who mopped floors for the world's largest retail chain seven days a week for barely subsistence wages.


Now as ever some U.S. business interests are only too willing to turn human beings into a labor commodity, once again taking advantage of a public policy designed to flood the U.S. labor market with an overabundance of cheap and in a growing number of cases illegal labor.


Although Americans romanticize the great wave of immigration that took place at the turn of the last century and frequently cite it as proof that America can endure and indeed prosper by a massive influx of immigrants, the sheer number of immigrants legal as well as illegal that has arrived on U.S. shores since 1990 makes the great wave look not great at all.


The difference between then and now lies in more than the numbers. Today we see a powerful alliance between immigration lawyers, ethnic-identity interest groups, vote-hungry politicians and business lobbyists all seemingly tripping over one another in an effort to portray the felony of employing illegal aliens as an act of heroism or compassion.


The civil lawsuit filed against Wal-Mart in federal District Court in New Jersey after last month's raids is an example of this. The lawsuit was not filed on behalf of Americans or legal immigrants, who probably can show real damages as a result of Wal-Mart's alleged pattern of criminal activity. Nor was the lawsuit filed on behalf of any disadvantaged competitor of the floor-cleaning sub-contractors Wal-Mart used in an apparent effort to circumvent laws against hiring illegal aliens. The New Jersey lawsuit was filed by the illegal aliens who worked for Wal-Mart's cleaning contractors.


The conditions under which Wal-Mart worked these illegal aliens were truly awful and, if the allegations against the giant multinational corporation are true, then Wal-Mart and its subcontractors should be punished. Unfortunately, the New Jersey lawsuit, as it currently is configured, probably won't make that happen because it depends on a cynicism that we should hope does not exist among American jurors.


The New Jersey lawsuit asserts claims under the Civil Rights Act and Fair Labor Standards Act and seeks back and overtime pay for work performed. In that way it is not unique. But these illegal-immigrant plaintiffs are unique in that they assert a claim under the Racketeer Influenced Corrupt Organization Act (RICO). It is the antiracketeering statute's first use by illegal aliens to sue their own employer for the act of hiring them since it was made available in 1996 to redress immigration violations.


A successful RICO lawsuit requires that plaintiffs show an ongoing criminal act: the "predicate act" on which, by statute, all civil RICO claims depend. In what only can be seen as a historic demonstration of chutzpah, the illegal-alien plaintiffs who concede both their illegal status and the consensual nature of their employment by the very companies they now are suing have cited as that predicate act their own ongoing criminal employment for Wal-Mart's cleaning contractors.


These plaintiffs maintain that everyone involved in the "conspiracy" and "ongoing pattern of illegal activity," which all successful RICO claims must show, has committed a crime by engaging in this illegal hiring scheme, including themselves. Back pay and overtime are generally not forms of damages awarded on RICO claims, but a court can award three times the amount of pecuniary damage plaintiffs can show. These illegal aliens seek not just compensation for their work but a windfall for conspiring with Wal-Mart and its subcontractors.


That the plaintiffs believe a jury can be persuaded to their position is amazing enough. More significant, though, is the fact that the first lawsuit to be filed against Wal-Mart and its cleaning contractors is one initiated by illegal aliens, not by the Americans and lawful permanent residents whose wages were driven down by Wal-Mart's alleged criminal activity, nor by the legitimate U.S. businesses deprived of opportunities.


There are those who are attempting to depict the New Jersey lawsuit as one seeking only fairness, even arguing the illegal workers should be given full amnesty. These advocates contend without evidence that our economy depends on illegal immigrants because there is a large number of jobs too dangerous or too low paying for Americans.


Besides being insulting to immigrants and Americans, the modern slogan "immigrants do the jobs Americans won't" is untrue, as are claims that our economy depends on immigrants or that some industries would collapse without illegal-alien labor.


During our most recent immigration time-out, which lasted from 1925 to 1965, immigration levels were so low the number of immigrants in the country actually declined. Yet during that time, not only did Americans build the largest and richest economy the world had ever seen, we also invented computers, developed a healthy labor movement, initiated the space program that put men on the moon, made great strides in civil rights and environmental legislation, instituted universal education, established a huge, stable and prosperous middle class and successfully prosecuted World War II against two powers on two fronts.


Americans are perfectly capable of running a country without importing a massive, exploitable underclass to do our dirty work. Make no mistake: This is exactly what unethical U.S. employers have succeeded, and continue to succeed, in doing, while many American jobholders have seen their employment terminated and themselves replaced with lower paid foreigners. It is a documented feature of the current massive wave of immigration, according to the U.S. Commission on Agricultural Workers.


In 1997, in what generally is regarded to be the most comprehensive study of the massive immigration the United States now experiences, the National Academy of Sciences found that in recent decades American workers without a high-school diploma have seen their wages depressed by between 40 and 50 percent as the direct result of immigration. Yet to date, no American citizen, lawful permanent resident or law-abiding business competitor has come forward to assert a RICO claim against Wal-Mart.


That is why liberals, who are by and large silent on the issue of illegal immigration, now risk losing the faith of one of their core constituencies. Americans who occupy the lowest-paying jobs are at the greatest risk of becoming the victim of an immigration policy that is manifestly against their best economic interests.


Friends of Immigration Law Enforcement (FILE), a Washington-based watchdog group, actively is pursuing such a legitimate RICO claim against Wal-Mart and its contractors. The organization is looking for a way to help RICO benefit American citizens and businesses as it originally was intended to do and is running advertisements in New Jersey newspapers seeking suitable plaintiffs.


FILE maintains that in an environment in which enforcement of immigration law is largely absent, Americans must have recourse to U.S. laws to ensure that immigration laws are enforced and injustices corrected.


In a 1924 letter to Congress, Samuel Gompers, founder and president of the American Federation of Labor and himself an immigrant, wrote, "Every effort to enact immigration legislation must expect to meet a number of hostile forces and, in particular, two hostile forces of considerable strength. One of these is composed of corporation employers who desire to employ physical strength (broad backs) at the lowest possible wage and who prefer a rapidly revolving labor supply at low wages to a regular supply of American wage earners at fair wages. The other is composed of racial groups in the United States who oppose all restrictive legislation because they want the doors left open for an influx of their countrymen regardless of the menace to the people of their adopted country."


What was true in 1924 remains true today; Sinclair's jungle is still here. It gives us a head of broccoli that costs 15 cents less than it would if picked by a fellow American, and helps suburbanites keep their lawns looking lush for less. You can find the jungle packed into the backs of vans driving to malls at 1 a.m., on rush-hour subway cars where commuters are offered batteries for sale by Mexican peasants and in the new (yet, old) American phenomenon of immigrant housing enclaves that resemble Calcutta.


One can see the effect of the jungle on Americans, too, as the most vulnerable among us fall further behind. As Gilberto Garcia, the illegal-alien plaintiffs' lawyer in the Wal-Mart lawsuit recently said (with unintentional irony), "This is a case about the people who are in the unemployment lines who should be in those positions and are not." The fact is too many of those standing in unemployment lines are U.S. citizens displaced by illegal aliens.c


Hayes is chief counsel to Friends of Immigration Law Enforcement and author of The New Immigration Law and Practice, to be published in October. He began practicing immigration law shortly after graduating from Pace University School of Law in 1994 and has represented recent immigrants in civil and criminal matters.
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