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Few Punished Under Existing TN Law Targeting Employers of Illegal Immigrants

The state lacks access to federal immigration records, without which labor department enforcement officials are often unable to connect the dots and determine who is or is not in the country legally.

Many politicians across the state are making the case for an Arizona-style crackdown on illegal immigration here in Tennessee.

But there’s also general agreement that a law the Legislature already overwhelmingly approved to punish businesses that hire undocumented workers is being underutilized.

Just days after the Obama administration announced it would sue Arizona over its controversial new state-level illegal-immigration enforcement law, a leading Tennessee Democrat filed a complaint with state labor officials alleging that managers of a high-profile, government-subsidized Nashville construction project were employing illegal aliens.

Officials are still reviewing Rep. Mike Turner’s allegation to determine whether there is enough evidence to proceed with a full investigation, said Department of Labor spokesman Jeff Hentschel. But if the past is any indication, the chances the Old Hickory lawmaker’s complaint will result in any action against the employer appear slim.

The Labor Standards Division received 2,111 workplace complaints in Tennessee between July 1, 2009 and June 30, 2010, mostly for child labor and wage law violations.

But only two of the total number of complaints the department received addressed businesses employing illegal aliens, said Hentschel.

Since the state’s Illegal Alien Employment Act took effect on Jan. 1, 2008, the department has received a total of 28 complaints alleging companies employed illegal immigrants.

Fifteen of those allegations were pursued. In only two complaints since the law took effect 31 months ago has the department sought to punish a company for employing illegal immigrants. In one case, an employer quickly pleaded guilty and fired suspected illegal immigrants before the state could suspend the company’s business licenses. A second company is currently awaiting disciplinary action.

Officials at the Tennessee Department of Labor and Workforce Development claim they have only limited tools and restricted legal authority to sniff out workers who are in the country illegally, or to prove a case against an employer who hires them.

Turner, who voted against a resolution declaring support for Arizona’s immigration law during the last legislative session, said in his complaint he had obtained inside information that the construction company was employing illegal aliens.

“While I am not employed at the job site and do not have the ability to personally verify these allegations, I know the persons who have witnessed the employment of illegal aliens at the Convention Center job site and know that they are credible individuals,” the Tennessee House Democratic caucus chairman said in his complaint filed July 15.

Up until July 2008, the labor department essentially had nothing to do with immigration law enforcement.

Under the Illegal Alien Employment Act in Tennessee — approved with no opposition on June 7, 2007 in the House, and with only Nashville Democrat Douglas Henry voting “No” June 12, 2007 in the Senate — the department can take enforcement action against Tennessee businesses.

However, formal complaints against employers, or requests for investigations, must be filed only by designated government employees or elected officials.

The result is the department’s enforcement of the spirit of the law is seriously lacking, argues Murfreesboro Republican Bill Ketron, a primary sponsor of the act, which he said was patterned after similar bills in other states trying to “stop the flow” of money and jobs to illegal immigrants.

Sen. Ketron suggests labor department bureaucrats take some investigative initiative, “multitask” and dig deeper to find immigrant workers when conducting other routine inspections, instead of waiting for complaints to land on their desks.

“How hard is it before you leave to say, ‘Can I see your documentation on all your employees?’” asked Ketron, who, along with Republican Reps. Joe Carr and Tony Shipley, is in Arizona to deliver the Tennessee General Assembly’s vote of confidence for the state in its legal confrontation with the federal government.

“That’s the frustrating part about bureaucracy in state government,” he added.

Indeed, many illegal immigrants working in Tennessee go undetected, and those who employ them unpunished, acknowledge labor officers. A company that provides the state with information indicating employees filled out all the required I-9 employment forms will face no punishment if they can reasonably show they didn’t know illegal aliens were working on the job, said Dan Bailey, the Department of Labor’s general counsel.

Bailey said part of the problem is that the department lacks access to federal immigration records, without which state officials are unable to connect the dots and determine who is or is not in the country legally.

The department can only check to make sure forms were completed correctly for every worker, he said — after that, the business is in the clear.

“We cannot do anything until a complaint is filed,” said Bailey.“It is a complaint-driven system. And then when we get a complaint, we cannot respond to profiling issues.”

“We can’t remove (illegal immigrants). We can’t fine them. We can’t do anything.  But if we know there’s an undocumented worker, we can report it to ICE,” he said, referring to the U.S. Immigration and Customs Enforcement office, which is chiefly responsible for immigration laws.

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