Private Immigration Screening in the Workplace

Source: Stephen Lee, Stanford Law Review, Volume 61, Issue 5, 2009

For over twenty years, our immigration laws have required employers to screen their workforces for “unauthorized” immigrants. But rather than punish employers for failing to carry out these duties, the Department of Homeland Security (DHS) has worked with employers to identify unauthorized workers for removal–even where it is abundantly clear that employers are reporting the very workers they unlawfully hired in the first place, and are doing so to retaliate against workers who assert labor and employment rights. How can a law that was designed to punish employers be used to reward them? This Article attempts to explain this counterintuitive result. Although the DHS-employer relationship appears to be contentious and antagonistic, that relationship can often be highly collaborative and mutually beneficial, where the DHS overlooks employer indiscretions in exchange for help identifying potentially removable immigrants. In this way, employers resemble other immigration screeners, like airport inspectors and state and local law enforcement officers, who assist the DHS by winnowing down to a manageable size the pool of potentially removable immigrants. This Article therefore argues that employers should be regulated as screeners where employers should be punished for using their screening authority beyond the scope of its intended use, which often means employers using reporting and the threat of reporting to avoid liability for labor and employment violations. Thus, while our immigration laws contemplate punishing employers at the front end for who they hire, this Article argues our laws should also punish employers at the back end for who they report. As one set of remedies, this Article proposes subjecting employers to possible audits if they report workers to the DHS, and applying the exclusionary rule against complicit immigration officials.

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