Deterrence Without Discrimination
By Mark J. Miller
Europe's Lessons for America
By Malcolm R. Lovell, Jr.
Introduction
Faced with mounting illegal immigration, most major continental Western European countries adopted employer sanctions a decade ago. In their studies of the European experience, Mark J. Miller, a scholar on European migration, and former Undersecretary of Labor Malcolm R. Lovell, Jr., take differing perspectives: Miller documents the European record for making sanctions work without discrimination; Lovell examines the successes and failures of European enforcement for its lessons for U.S. policymakers as they prepare to implement employer sanctions in mid-1987. From their different vantage points, both observers conclude that Europe's experience shows sanctions can work and that it is relevant for the United States.
Reviewing the often misinterpreted European experience with sanctions, Miller finds that enforcement did in fact lag at the outset in France and the Federal Republic of Germany (FRG) because of poor interagency cooperation, insufficient enforcement personnel, mild penalties, and indifference among some public prosecutors and judges, leaving some outside observers to conclude that sanctions had failed.
But the French and Germans began toughening enforcement and penalties in the early 1980s, boosting fines and tightening coordination among enforcement agencies and police. France deployed more labor inspectors and set up new regional enforcement machinery. To counter poor public understanding and bureaucratic and judicial indifference, European governments publicized the abuses of illegal alien employment and reaffirmed enforcement priorities. They stressed exemplary action against notorious violators as an incentive for voluntary compliance and devised new tactics for employers who hid behind dummy fronts or subcontractors. With these measures, Miller finds citations and fines rose sharply and voluntary compliance improved. In 1985 France, the FRG, four other European nations, and Hong Kong assured the U.S. General Accounting Office that sanctions were deterring illegal immigration.
Miller concludes that sanctions in France caused no increase in job discrimination against persons of North African Arab origin, the ethnic group most analogous to U.S. Hispanics. Rather, most Europeans regard sanctions as necessary to combat the discrimination inherent in the exploitation of illegal aliens and to ease the integration of legal immigrants.
Building on Miller's analysis, Lovell finds valid lessons in both Europe's successes and failures. Lovell sees the United States as more endowed than Europe with a tradition of voluntary compliance among employers who, with proper leadership, will come to accept employer sanctions as a good business practice.
Other lessons Lovell draws from his assessment of Europe's performance are:
- The Department of Labor must play a critical enforcement role as its counterparts in Europe have. Success will demand that Labor increase significantly its wage and hour compliance staff and involve in the effort other Department of Labor activities that are in close touch with the workplace.
- Diverse government agencies dealing with social welfare, taxes, labor, agriculture, and law enforcement have been brought into Europe's enforcement effort. Similarly, the United States must tap the information and enforcement potential of such agencies as Social Security and Internal Revenue, as well as state and local labor standards and law enforcement agencies.
- The European experience with employers confirms the obvious: their cooperation is vital. Their interest in clear and less burdensome identification and paperwork procedures and inconsistency of enforcement must be respected. Uneven enforcement among regions or industries could distort business competition and alienate employers.
- The European experience also reaffirms what has long been clear to the Immigration and Naturalization Service (INS): it must make best use of scarce personnel by concentrating on notorious violators, choosing its initial cases with care to avoid early, precedent-setting defeats.
- INS must have the full additional funding and personnel directed by Congress, now and in the future, with more of the cost of enforcement recovered through more realistic fees for services or through steeper fines and forfeitures.
- There must be sustained, high level support for the effort in Congress and the executive branch, particularly as enforcement successes begin to pinch special interests reliant on illegal foreign labor.
- Fines and penalties must have regular reevaluations to see that they are not too mild to deter, as they were initially in Europe.
- Some European employers showed remarkable adaptiveness in hiding behind subcontracting or dummy fronts. Another likely tactic for some employers is to shift the costs of possible penalties to their illegal alien workers. Such abuses must be countered by special vigilance, exemplary penalties, cooperation where possible with labor organizations, and the broadest possible interpretation of the new law's prohibitions against these practices.
- Reliable and secure identification is a major enforcement advantage for the Europeans, who have shown that it is not inconsistent with democratic values. For the United States, secure identification would be the single most important step toward effective enforcement, while relieving employers of the burdens of demoralizing uncertainties, threats of discrimination charges, and heavy paperwork.
Lovell finds that the prospect of heavy legal immigration and amnesty for up to 3.9 million more migrants over the next ten years lends special immediacy to Europe's emphasis on employer sanctions as enlightened labor legislation essential to integrating aliens and protecting them from exploitation.
Lovell joins Miller in finding that neither in Europe nor in the United States are employer sanctions a cure-all for the complex problem of illegal immigration: they must be used with other coordinated manpower, economic, foreign trade, and law enforcement policies. For Lovell, high among those policies are more efficient use of the U.S. labor force and the end of protection and labor subsidies for inefficient industries dependent on cheap foreign labor. He concludes that employer sanctions, rather than a burden, can support the U.S. quest for competitiveness by stimulating employers to optimize their use of labor and capital in their investment choices.
