Strict immigration law lacks ‘teeth’

By Mary Lou Pickel, Atlanta Journal Constitution, March 2, 2010

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Cobb County District Attorney Pat Head faults the law for not providing penalties for those who break it.

“It would have been good to say, ‘This shall be punished,’ ”
 Head said. “If they don’t put anything in there, then there’s no punishment,” he said.

Nearly four years after it was passed, a state law cracking down on the hiring of illegal immigrants has had little effect: Two county prosecutors say they can’t bring charges under the law because it provides no penalties. And the state hasn’t audited a single employer because the Legislature hasn’t set aside money to do so.

In Cobb County, the discovery that suspected illegal workers were helping to build the county’s new courthouse has called into question a key provision of the 2006 Georgia Security and Immigration Compliance Act. The law was supposed to ensure that contractors on public projects — like the Cobb courthouse — use legal workers by requiring the contractors to verify their workers’ status. Rules passed by the state Labor Department require contractors to sign affidavits swearing to that effect.

In Cobb in particular, the affidavit system hasn’t worked. The prime contractor on the courthouse job created its own forms for subcontractors that were not really affidavits at all. A review of the documents by The Atlanta Journal-Constitution shows they were not dated, contained no oath and were not witnessed by a notary public.

Cobb County District Attorney Pat Head faults the law for not providing penalties for those who break it.

“It would have been good to say, ‘This shall be punished,’ ”
 Head said. “If they don’t put anything in there, then there’s no punishment,” he said.

Under the law and state rules, the prime contractor on a job is required to obtain affidavits from its subcontractors. But Gwinnett County, like Cobb County, has not required contractors to share that paperwork with them, so the counties don’t know if it’s done properly or at all. DeKalb and Fulton counties do keep paperwork from both prime and subcontractors, but only on jobs valued at $50,000 or more.

The law is supposed to apply to all public contracts, regardless of size. An update to the law that took effect in January emphasizes that such affidavits are public record.

Even if a contractor does everything right and follows the model affidavit published by the state Labor Department, he’s still swearing that he’ll obtain an affidavit from a subcontractor at a future date. That makes it hard to prosecute for false swearing, Head said. The contractor is promising to do something in the future, and not swearing to something that he knows is false, Head said.

“It’s got to be something false at the time he swears to it,” Head said.

Senate Majority Leader Chip Rogers (R-Woodstock) was the sponsor of the bill when it passed in 2006 during the heated nationwide debate on immigration reform. He acknowledges that the law needs changes.

“Clearly there are areas in here that need some teeth,” Rogers said.

The state Labor Department hasn’t audited any contractors since parts of the law went into effect in 2007.

“To date, no funding has been provided, therefore no audits have been performed by the department,” Labor Department spokesman Sam Hall said in a written statement. Even if an audit were performed, there’s no penalty spelled out in state law for failure to comply, Hall said.

Illegal immigrants, keep out

Cobb County prides itself as a place where illegal immigration is not tolerated. The county was the first in Georgia to sign on to a program in which county jail officers are trained to identify illegal immigrants in their lockup and turn them over to federal agents for deportation.

But it was in the heart of Cobb County, just off the historic Marietta Square, where allegations surfaced that illegal immigrants may have worked on the new courthouse.

A bricklayers’ union representative from Washington spoke with masons working on the courthouse last fall, asking how he could get a job.

The workers told him in Spanish that no papers were required and the pay was in cash, said Jose Alvarez, a representative of the International Union of Bricklayers and Allied Craftworkers.

The group in November called the Georgia Labor Department, which says it’s conducting an investigation into any violations of the state unemployment insurance tax law on the $63 million courthouse project, Hall said.

When the union contacted Cobb County earlier this month, a swift chain of events unfolded.

The sub-sub-contractor on the courthouse masonry job — Victor Candelaria — was removed along with about 10 workers because he did not run his workers through a federal database to check their legal work status, according to Chip Kessler, president of Zebra Construction Co. of Suwanee.

Candelaria reported to Zebra, which has the $4.1 million masonry subcontract on the courthouse. Turner Construction Co. is the prime contractor. Both Turner and Zebra worked on the renovation of the Cobb County Jail as well.

Because the workers were kicked off the site, and because they weren’t run through the federal database, it’s impossible to know now whether they were here legally.

25-30 workers let go

With high unemployment in Georgia, some Cobb County residents worry that they could be missing out on jobs.

“I’m just concerned they’re not employing people here in Cobb County,” said Ed Wigart, a construction worker from Powder Springs. “They’re going to take advantage of someone who is illegal and pay lower wages,” he said.

Zebra Construction was audited last August by federal Immigration and Customs Enforcement agents for compliance with federal hiring laws. The company had to let go about 25 to 30 workers earlier this year because they could not prove they were legally allowed to work in the United States, Kessler said. Those firings are separate from the courthouse bricklayers.

“Some were longtime employees — some were with us for 10 years — bricklayers,” Kessler said.

Zebra cooperated with federal officials, received no citations and is now fully compliant, Kessler added.

The only punishment for those who disobey the state law is prosecution for false swearing on an affidavit, which is a felony punishable by a $1,000 fine and one to five years in prison.

Zebra’s lawyer said in an e-mail that the company has a “written affirmation from Candelaria stating he was complying with all federal and state laws,” but the company won’t share the document. “As a matter of company policy, [Zebra] does not share contractual documents with the press,” Zebra’s lawyer, Victor Cerda, wrote.

The company says it does not know where Candelaria is. Cobb County has not asked Zebra for the paperwork that Candelaria signed.

How the law works

The law requires contractors on public jobs to sign affidavits saying they have registered for an electronic federal database known as E-Verify to check new hires to make sure they are legally allowed to work in the United States. The contractor also is supposed to make sure any subcontractors they hire swear that they will conduct checks as well. Those subcontractors are supposed to make sure their sub-subcontractors swear to conduct the hiring checks and so on down the line, according to Rogers, the law’s sponsor.

“The problem with Rogers’ bill is it doesn’t have its own specific enforcement, so you have to rely on other statutes,” said Danny Porter, Gwinnett County district attorney. “And that’s where you get into trying to prove whether someone violated an affidavit with a promise of future performance,” he said.

The E-Verify system checks Social Security numbers against immigration data in a matter of seconds to determine whether an employee may work legally.

Head, the district attorney in Cobb, asked: If Cobb County really wanted to know whether illegal immigrants were working at the courthouse, why couldn’t the county call the immigration officer stationed at the jail and check everyone’s paperwork?

“All of a sudden I’d bet you’d have a Help Wanted sign out front.”

A spokeswoman for Turner Construction said in an e-mail that the company now has set up a badge system to “identify and confirm” that only verified workers are allowed on the site.

After inquiries from The Atlanta Journal-Constitution, Cobb County last week instituted a new system for checking affidavits of all companies working on the courthouse job, all the way down the line. The affidavits also have been improved, county spokesman Robert Quigley said

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