The Dangerous Intersection of Independent Contractor Law and the Immigration Control and Reform Act: The Impact of the Wal-Mart Settlement.
An estimated 7.2 million undocumented immigrants are currently employed in the United States. These workers commonly find jobs in lowwage, labor intensive industries. Many of these jobs are with smaller firms that work as independent contractors to larger businesses. The intersection of the two phenomena—readily available, cheap, illegal laborers and a high demand for cheap, desperate laborers—creates a tempting opportunity for uninformed, careless, or unscrupulous employers. Perhaps emblazoned by shifting political priorities, from the Clinton Administration’s “catch and release” policy to the Bush Administration’s pledge to “return every illegal entrant we catch at the border, with no exceptions,” illegal aliens continue to find employment in record numbers in direct violation of federal laws. To help better understand the potential for unintended violations of the Immigration Reform and Control Act and of independent contractor law, this Article investigates the responsibilities of an employer in its relationships with independent contractors to assure that workers are legally eligible for employment. Further, this Article analyzes the shifting priorities of the U.S. government in enforcing the laws on illegal workers as foreshadowed by a 2005 agreement in which the government required Wal-Mart to make an $11 million cash payment and to accept three weighty enforcement burdens in exchange for dropping charges that Wal- Mart knowingly used independent cleaning contractors that employed illegal aliens. Finally, this Article explores the relative merits of strategies that a business can employ in efforts to balance control of its hiring practices with exposure to liability for hiring illegal aliens.
|Main Author:||Pearce II, John A.|