Colorado Penalizing Builders

[Dick Seibert]

Rick:

It looks like your state is taking the lead in criminal prosecution, I wish California would follow!

FRISCO - Since stiffer state immigration laws went into effect earlier this year, the level of fear has risen among those in the local construction industry who worry they could be penalized for illegal immigrants on the jobsite, said Dave Koons, a custom home builder and president of the Summit Home Builders Association.

"For me, as a builder who subcontracts a lot of work, I realize that certainly I'm more exposed to the danger of being criminally prosecuted for having unknowingly hired illegal immigrants through a subcontractor, and that would be terrible - but it's not going to strip me of my livelihood," Koons said, adding that some small local subcontractors could lose everything in a similar situation.

A Senate bill passed in last year's special legislative session holds employers responsible for verifying the legal work status of a potential hire. Failure to do so could result in fines of up to $5,000 for the first offense and $25,000 for subsequent offenses.*

* http://www.summitdaily.com/article/2...NEWS/103170088

[David Meiland]

Since the law went into effect on Jan. 1, Koons began adding a paragraph to his contracts that essentially "passes the buck" to the subcontractor by requiring that person attest that all his workers are legally authorized employees.

Hmmm... wonder what effect this clause would have?

[Overbuilders]

Dick, you little researcher, you. Yes, I've known about that law since the legislation was introduced last summer. It was in angry response to the pathetic showing by mostly illegal immigrants during "A Day Without Immigrants" rally last May 1st (see pictures, below). Outgoing Governor Owens fired a parting shot across the Democrat-controlled legislature, requiring a special session to address the issue. More info here: http://www.cairco.org/info/legislati...2006jul25.html

The legislation has put a real scare into subcontractors that maintain a mostly Hispanic, Spanish-only speaking workforce, whose ID's reveal surnames such as Smith, Jones, and Williams.

[Overbuilders]

Hmmm... wonder what effect this clause would have?

David,

Not sure. It's almost like a GC's contract that reads, "This Contract supercedes all previous proposals and agreements..." Then the subcontractor redacts all pertinent requirements, signs it, and sends it back.

Yours is a very good question.

[Dick Seibert]

The whole idea is to get the builders who profit from it, it remains to be seen if Colorado can maintain the principle of: "You can subcontract your work, but you can't subcontract your responsibilities." They've got to get to the deep pockets, otherwise there will always be more subcontractors to replace those who fall.

[Robert Z]

Over the past year, you might have heard of the Minutemen and all the hullabaloo in Herndon, VA. I live near Herndon and witnessed all the events that were reported in the national news.

Now, Herndon's town council has passed an ordinance requiring sole proprietors to document that they are legally in the US as part of obtaining a Hendon business license. I was talking to my electrician yesterday and he told me about it (he is a resident of Herndon).

I wonder how long it will be before the challenges in court start. I can only speculate as to why they don't include other types of business entities, but I suspect it is because the town has concluded that illegal immigrants don't start business that incorporate.

Apparently, the Town also voted to start sending some of their police officers for training and to be deputized as federal agents for purposes of enforcing immigration law. It's a dicey issue around here because there are so many jurisdictions with various law enforcement departments, and, from what my cop friends tell me, the concerns about maintaining good relations with latinos (legal and illegal) trump other concerns about illegal immigrants. The gang MS13 is quite active here, and growing, and the cops and the feds are more worried about staying on top of that than they are worried about day laborers congregating and looking for work.


http://www.connectionnewspapers.com/...per=66&cat=104

As a side note, contrary to what was reported in the news, the Minutemen were only marginally effective in Herndon. The day laborers merely changed their tactics for looking for work, spread out, went to different locations, and so on. The 7-11 that everyone saw in the news has bilingual "no loitering" signs now, and Herndon passed an ordinance prohibiting people in vehicles from talking to people on the side of the street or picking them up (or something similar). Every so often, a cop or a 7-11 rent-a-cop shoos the day laborers away.

[Victorian John]

RobertZ,

"The gang MS13 is quite active here, and growing, and the cops and the feds are more worried about staying on top of that than they are worried about day laborers congregating and looking for work."

Same here in the Boston surrounds, on both counts.

"Herndon passed an ordinance prohibiting people in vehicles from talking to people on the side of the street or picking them up"

That would really mess with my MO for getting dates-;)

John

[quijas23]

I am was a teacher here in California and saw the different ways that illegals get around the restrictions... My wife is from peru, and when she asked some of my students how they got around the requiring of Social security numbers etc., one student replied that you could go around the corner and buy a social security card, license etc. for 150.00....
I am of the firm beleif that Immigration control starts at the border...
After what I paid making my wife a legal citizen (6,000- 10,000) it makes me want to pull my hair out (whats left) when I see towns wanting to start taking the initiative... Its good for the front papers but little else...

[RWeber]

"but it's not going to strip me of my livelihood,"
Therein lies the problem. It should. People wont act in an accountable fashion unless they're convinced that they'll be held accountable for their actions.
He's basically saying, yeah, I might take a hit, but I still make a buck. Wrong. Law should be, its your responsibility to comply, you hire someone, its your responsibility. We do this with insurance and WC . . .
Give them a hole to excape through, they'll find a way to stretch it.

[Dick Seibert]

but it's not going to strip me of my livelihood," Koons said, adding that some small local subcontractors could lose everything in a similar situation.

Again the Sleaze is trying to contractually pass his liabilities off on his subcontractors so he "doesn't get stripped of *his* livelihood". I certainly hope that the courts don't hold up his attempt to circumvent the law, he doesn't give a damn about his workers or his subcontractors, all he cares about is himself, this kind of sociopathic behavior¹ can only be dealt with by the criminal law system.


¹ sociopath (soh-see-uh-path, soh-shee-uh-path)
Someone whose social behavior is extremely abnormal. Sociopaths are interested only in their personal needs and desires, without concern for the effects of their behavior on others. (Compare psychopath.)

[David Meiland]

So... if I agreed that it was my responsibility to verify employment eligibility for EVERYONE on my jobs including my subs' guys... how would you suggest I do that?? All I can really do is what the I-9 form requires, meaning verify their ID. Even border patrol agents admit that the quality of forged documents is so good that they sometimes can't tell a fake.

We gotta face up... the only way to stop this is to pour money into the Mexican economy so they have jobs there and stop coming here. Maybe if we stop importing so much from China and invest in a LOT more Mexican manufacturing? If I had a good answer to this I'd run for President.

[Dick Seibert]

David:

There is a world of difference between a guy who makes an attempt to verify the legality with I-9s, and a guy like Koons who deliberately turns his back on obviously illegal activity. At law it's always "Knew, or should have known", if a guy tries to do the right thing and an illegal slips by that's one thing, but if he either knew, or should have known, that's quite another thing. Koons obviously knew that his subcontractors were employing illegals and chose to turn his back to it, now that they are enforcing the law he wants to keep turning his back on illegality by placing the burden upon others. All the law is asking is for employers to take control their workplaces, and take responsibility for what goes on under their watch.

[RWeber]

I agree, Dick. And I see Davids point as well, but whatever law(s) we generate on this are going to get enforced and looked at by the courts like everything else we have. If he's making the effort, checking, keeping documentation, and it slips through because someone had forged documents . . . I dont think anyone's going to string him up.
My interpretation of the quote is that he is knowingly dodging . . . he knows its going on, nobody is making him check, he's still making money, so, oh well, kind of too bad if the sub gets nailed, but hey, it wont take my income away. Yeah, thats the guy that needs a dog & pony show made of him.

[rselvig]

Dick you raised the point of holding the GC responsible for the entire labor chain. I agree with you. I guess my solution would go a bit further and hold the home/building owner accountable at some substantial level. It seems that many/most homeowners are interested to keep their costs down and accordingly will often buy services based on low/lowest price. If the illegal crews work cheaper, they often get the work and the homeowner is the ultimate beneficiary of this relationship. I think it is time that everyone be held accountable for maintaining a fair and legal working environment.

[Dick Seibert]

Rolph:

I've explained in another thread that they can go after the property owner by filing a lien, the IRS says that they don't have to go that far anymore, they get the funds at the second tier by letter to the Builder threatening to put a rock on the builder's account unless he pays up.

There is a new case down in California relying on Federal Constitutional law, it allows illegal aliens to bring an action in court to collect wages paid under Federal minimum wage laws, even if the illegals don't work on the jobsite, in this case welders working in the shop, and it allows them to collect not only for the wages on "prevailing rate" jobs, but on other projects they worked upon in the shop. The wording interpreting U.S. Constitutional law is broad, and would apply to any project financed by a federally chartered bank, saying that all workers must be paid the prevailing rate if public funds are involved:

“The conditions of employment on construction projects financed in whole or in part by public funds are governed by the prevailing wage law.”

“‘Article VI of the Constitution provides that the laws of the United States “shall
be the supreme Law of the Land; . . . any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.” Art. VI, cl. 2. Thus, . . . state law that conflicts with federal law is “without effect.” Consideration of issues arising under the Supremacy Clause “start[s] with the assumption that the historic police powers of the States [are] not to be superseded by . . . Federal Act unless that [is] the clear and manifest purpose of Congress.”’” [] Examples of historic police powers include ‘[c]hild labor laws, minimum and other wage laws, laws affecting occupational health and safety, and workmen’s compensation laws . . . .’ ‘States possess broad authority under their police powers to regulate the employment relationship to protect workers within the State.’ ‘Accordingly, “‘[t]he purpose of Congress is the ultimate touchstone’” of pre-emption analysis. [] Congress’ intent may be “explicitly stated in the statute’s language or implicitly contained in its structure and purpose.” In the absence of an express congressional command, state law is pre-empted if that law actually conflicts with federal law, or if federal law so thoroughly occupies a legislative field “‘as to make reasonable the inference that Congress left no room for the States to supplement it.’”’” (Citations omitted; emphasis added.) (Farmer Brothers Coffee v. Workers’ Comp. Appeals Bd., supra, 133 Cal.App.4th at pp. 538-539; see also Cipollone v. Liggett Group, Inc. (1992)
505 U.S. 504, 516.)

“Power to regulate immigration is unquestionably exclusively a federal power. But the Court has never held that every state enactment which in any way deals with aliens is a regulation of immigration and thus per se pre-empted by this constitutional power, whether latent or exercised.” (Citations and emphasis deleted.) (De Canas v.Bica (1976) 424 U.S. 351, 354-355.)

As one federal circuit court reasoned: “We recognize the seeming anomaly of discouraging illegal immigration by allowing undocumented aliens to recover in an action under the FLSA. We doubt, however, that many illegal aliens come to this country to gain the protection of our labor laws. Rather it is the hope of getting a job—at any wage—that prompts most illegal aliens to cross our borders. By reducing the incentive to hire such workers the FLSA’s coverage of undocumented aliens helps discourage illegal immigration and is thus fully consistent with the objectives of the IRCA.” (Patel v. Quality Inn South, supra, 846 F.2d at pp. 704-705; Singh v. Jutla (N.D.Cal. 2002) 214 F.Supp.2d 1056, 1062 [The FLSA “discourages employers from hiring such workers because it eliminates the employers’ ability to pay them less than minimum wage or otherwise take advantage of their status.”]; Flores v. Amigon (E.D.N.Y. 2002) 233 F.Supp.2d 462, 464 [If employers know they will not only be subject to civil and criminal penalties “when they hire illegal aliens, but they will also be required to pay them at the same rates as legal workers for work actually performed, there are virtually no incentives left for an employer to hire an undocumented alien in the first instance.”].) Hence, the IRCA does not preempt California’s prevailing wage law as the prevailing wage law removes a major incentive to hiring undocumented workers. ¹

¹ http://www.courtinfo.ca.gov/opinions...ts/B182068.PDF