Remember RICO? The statute called Racketeer Influenced Corrupt Organizations Act (RICO 18 U.S.C. ss 961-1968). When the mobs were overrunning New York City, Chicago, and other big cities, the federals brought out this Act in order to go after the mobs. Its use was very successful in shutting down many mob operations in some big and small cities.
RICO of course provides for criminal penalties in the main, but also provides for civil sanctions, namely triple damages and attorney fees. The statute requires that (1) the defendant violated the RICO by participating in a pattern of racketeering activity through its association with an enterprise affecting interstate commerce; (2) that the plaintiffs sustained an injury to their business or property; (3) and the violation of the law caused the injury.
In 1996 Congress expanded the scope of RICO to include violations of the federal immigration laws.
A recent news article described how some imaginative lawyers have come up with a new use for RICO. They have devised a theory that will allow them to sue the employers of undocumented workers. We all know that there are laws on the books to sanction employers for hiring undocumented workers but we also know that they are rarely enforced with any vigor by the federal government. The lawyers say now it may be possible to hit these employers where it will hurt them most . . . in their pocketbook.
Some plaintiffs will be local governments that have been unsuccessful in getting help from the federal government to fund the costs of taking care of the influx of the undocumented in their jurisdictions. It seems to me that there could also be citizen plaintiffs as well as governmental litigants in the mix.
One theory is that there is a pattern of immigration violations that is costing local and state governments (the taxpayers) millions of dollars in law enforcement, education, medical, and various other social services. This in turn reflects in the taxes that are needed from local residents to support these services. The theory is that if there was no employment lure for the undocumented they would stay in their own countries. Unfortunately, that is not the case now. Employers don’t mind breaking a law that is not enforced in order to get a cheap labor source.
There was no prohibition in the law against simple employment of undocumented employees until the enactment of the Immigration Reform and Control Act of 1986 (IRCA). However, the Immigration and Naturalization Act of 1952 (INA274) made it a felony to encourage a noncitizen to enter or reside in the United States knowing that the entry or presence will violate our law, or to harbor or conceal such a person knowing his or her entry or presence has violated our law. This law also includes employers who hire at least 10 noncitizens in a year knowing that they were unauthorized to work.
So much for the laws.
Ours is a world of manufacturing and other service jobs. In the aircraft maintenance business there are many more surveillance efforts in place to exclude any potential security risks in the employment pool. There would appear to be little threat from an undocumented person working in a meat packing plant, farmer’s field, or a car wash, but it is a little risky to have such persons working on aircraft. You may have read that Tyson Foods was recently hit with a noteworthy verdict for just such conduct although it did not include a security risk.
Employers must now give serious consideration to the possibility of a RICO lawsuit in the case of hiring undocumented workers and must weigh the benefits and drawbacks. Plaintiffs can include the workers themselves (in the case of substandard wages), the company’s competitors and their employees and the usual governmental entities that have to provide various social services.
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