Papers or not, there's work
The raid was the culmination of an investigation against Fischer Homes, a large home builder in Northern Kentucky, Ohio and Indiana that had drawn the attention of a federal immigration agency newly resolved to crack down on businesses that knowingly employ illegal immigrants.

Papers or not, there's work

Crackdown hasn't stopped hiring of immigrants
By Steve Lannen
CENTRAL KENTUCKY BUREAU

FLORENCE - On a weekday morning in May, gleaming white vehicles with federal agents accompanied by local sheriff's deputies swarmed into the Tamarack Trace apartment complex.

They detained residents inside and outside their apartments and at subdivisions under construction nearby. In all, nearly 100 men were arrested on immigration violations.

The raid was the culmination of an investigation against Fischer Homes, a large home builder in Northern Kentucky, Ohio and Indiana that had drawn the attention of a federal immigration agency newly resolved to crack down on businesses that knowingly employ illegal immigrants.

The most serious charges, including money laundering and harboring, were brought against a subcontractor who allegedly hired the men, housed them in apartments and provided them as labor to Fischer. Four Fischer supervisors were also charged with harboring because, according to federal indictments, they allegedly knew what was going on and provided the undocumented men jobs.

In Central Kentucky and across the state, the fallout from the Fischer raid is still taking shape. Some construction companies and contractors appear to have made a small effort to tighten hiring practices, according to interviews with workers. Yet other workers said they continue to have little or no trouble finding jobs, even if they cannot legally work in the United States.

One lawyer who has defended employers in immigration cases against the federal government calls the Fischer raid "window dressing."

"Fischer Homes has been caught up in something which wouldn't have happened a year ago, but because of the pressure to look like (immigration authorities) are enforcing the law, they got caught," said Mary Pivec of Washington, D.C.

Immigration Customs and Enforcement officials say the raid is an example of a new policy of seeking criminal charges against employers of illegal workers instead of simply fining them. In recent months, the bureau's actions include raiding a large pallet company doing business in several states, and arresting owners of a few Chinese or Mexican restaurants employing illegal workers.

In a recent briefing, the agency touted its stepped-up enforcement. In fiscal 2006, a record 382 criminal arrests were made, compared with 25 in fiscal 2002 under the former Immigration and Naturalization Service.

Fischer Homes denied it broke any laws, and said it had no knowledge of the status of its subcontractors' employees.

Rise in immigrant labor

Several workers interviewed at home construction sites in Fayette and Scott counties in recent weeks estimated that 70 percent to 80 percent of workers in unskilled trades are Hispanic immigrants. It is likely that a majority of those are undocumented, they said, given that it is difficult to obtain papers to legally work in the United States.

Nationwide, more than 20 percent of residential construction workers are foreign-born, according to the National Association of Home Builders.

"It's a small percentage that have papers," said Jose Reyes, working with a crew to attach brick siding at a Ball Homes construction site in southern Fayette County.

The surge of Hispanic labor in the past decade is one of simple economics, say those who follow the construction industry.

Nearly all the work done to build a home is bid out to contractors, who in turn bid out portions of the job to subcontractors. The system makes it difficult to know who will actually do the work.

Within the bid, there are many fixed costs such as materials, equipment, taxes, insurance and workers' compensation. The variable is found in wages, said Larry Hujo, spokesman for the Indiana/Kentucky Regional Council of Carpenters.

"Enter the immigrant worker," Hujo said. Many times they don't know the value of their work and agree to work for less than they could. Unscrupulous contractors also pay cash and can avoid additional costs such as Social Security, workers' compensation or taxes, he said.

Several undocumented workers interviewed said they are paid $8 to $12 an hour.

The wages paid to immigrants have kept wages for other workers down, said drywall hanger Rick Cunliff.

In 1988, Cunliff earned $13 an hour. Now, it's $11. He doesn't fault immigrants for seeking work in the United States, he said, but he wishes they would raise their prices "so we can all get more of our share."

Agreements between home builders and contractors usually stipulate that contractors will abide by all immigration laws when hiring employees. However, that requirement is easily ignored, Hujo said.

Fischer Homes had such a stipulation in its agreement with Robert Pratt, the indicted subcontractor. A Fischer spokesman said none of the undocumented laborers arrested were employed by Fischer.

"That's their out under the immigration law," Hujo said. "They just say, well, I didn't know those guys were illegal. I just hired this (contractor). I got a tax ID number on him. ... You just deny any knowledge that they're illegal."

Who checks the papers?

So how does a home builder know whether construction workers can legally live and work in the United States?

It is the responsibility of subcontractors who hire the workers to check the documents. However, builders can be held liable if it can be demonstrated they know what's going on.

Federal law requires employers to examine identification documents, but it also says those employers are not expected to be experts in discerning and detecting improper identification.

At the Ball Homes construction site, workers said contractors had recently checked employee documents after Ball representatives reiterated the policy of employing only legal workers. "We don't want them on the job" if they are employing undocumented workers, said Jim Parsons, a Ball Homes business manager.

A painting foreman who works for a subcontractor said he feared he would lose several of his workers, but nearly all were able to produce documents, he said.

However, a crew member told a Herald-Leader photographer in Spanish that he was an undocumented immigrant from Honduras and had no work papers.

Parsons later said he took the Herald-Leader's findings seriously, and if he could find proof some subcontractors are employing undocumented workers, "they won't work with Ball Homes."

Jay Shoemaker, a concrete finisher, said he felt sorry for Hispanic men who are in the country legally or were born here. "It'll be harder for them to get a job. If I'm a contractor, I wouldn't even mess with it," he said.

At another Ball home, a drywall crew of five Mexicans and a Guatemalan said it had recently become harder to find work.

"It's changed a lot," said Zenon Castillo. "They ask for papers now. We can't do anything." His crew is working about three days a week, down from five or more, he said.

Before, Castillo said in Spanish, contractors just wanted him to show them some documentation even if they knew he was ineligible for work in the United States. Now, they want legitimate papers.

Apparently, however, some employers are still accepting documents that don't prove the bearer can work legally.

Several workers at a Beazer Homes site in Georgetown said contractors hired them after they showed a Mexican voter identification card or driver's license. Members of only one framing crew interviewed said they had work visas to legally work in the United States.

"Without papers, it's no problem to work now," said Elisel Santos, who was working with his brother on a roof.

Santos showed a matricula, or Mexican consulate ID card, to a contractor to get hired. His brother said he showed a voter ID card.

Next door, a trio of Guatemalan workers said it can be more difficult to get a job without documents, but that it hasn't been a huge barrier.

When he is asked to show papers, "I just go elsewhere," said Marino Perez.

Tom Cawthon, Beazer's division president in Lexington, was not pleased to hear that undocumented workers were on the site. He said he would look into the matter and that some contracts might be canceled.

At a recent meeting, Beazer officials reminded contractors that they expect them to employ those legally eligible to work in the United States, Cawthon said.

"We don't have methods to check every single worker on every site, but at the same time, we're serious about it, and we're not going to knowingly allow that situation to happen," he said.

Whether a Ball, Beazer or other builder would be held liable for the undocumented workers on a site depends on whether there is proof they know what's going on, said Gail Montenegro, an Immigration Customs and Enforcement spokeswoman in Chicago.

The ones who are "most egregiously violating the laws" will take priority, but anyone who employs an undocumented worker runs a risk, she said.

"If the evidence shows the employer above the subcontractor has knowledge, that's where we'll investigate and bring charges," she said.

That would include knowledge of housing the workers in apartments, transporting them to each job site, paying them in cash to avoid taxes, or simply hiring someone who does not present any documents, she said.

Home-building industry officials wonder whether the Fischer Homes prosecution has the potential to shift the burden of verifying employment from subcontractors to home builders.

"That's sort of uncharted water. Fischer might be a landmark case in that regard," Cawthon said, adding that's it's just too early to say what might happen.

If the burden does shift to main contractors, the cost of monitoring the work eligibility of subcontractors' employees could be passed on to home buyers, he said.

Dan Dressman, president of the Northern Kentucky Home Builders Association, said the question could have ramifications in any industry that uses contractors, not just home-building.

If there is fault to be found, Dressman said, it lies with a government that has long relied on outdated immigration policies. He said it's virtually impossible for an unskilled immigrant worker to legally gain work papers.

"They are basically throwing the problem on the backs of employers because they haven't done their job," he said.