Craig Regelbrugge, the vice president for government relations and research for AmericanHort, is at it again, and I appreciate it very much.
In the past few weeks, Regelbrugge has written two blog posts that explain the potential impact to the horticulture industry of some of the executive orders and actions President Trump signed since he was sworn in on January 20.
I’ll start with Regelbrugge’s most recent blog post since it focuses on an actual impact and not what may happen down the road. Regelbrugge reports that Immigration and Customs Enforcement agents* rounded up at least 150 people in North Carolina, Texas, Georgia and southern California, most of whom are criminal aliens or people who ignored a final deportation order.
According to Regelbrugge, there were also reports that people who were in the same residence or proximity to the targeted people may have been swept up without being charged or convicted of crimes. While Regelbrugge called this “unfortunate,” one could argue people in the same residence are harboring a fugitive and could be charged with a felony as well, according to 18 U.S.C. § 1071. I’m sure we’ll learn more in the coming days.
Regelbrugge talked about this executive order, Enhancing Public Safety in the Interior of the United States, in his latest post and in the one he wrote six days after the inauguration*. Part of the order not only makes a priority target for immigration enforcement to those who have committed a criminal offense, but also those who “have engaged in fraud or willful misrepresentation in connection with any official matter or application before a governmental agency; or, have abused any program related to receipt of public benefits.”
Regelbugge said an estimated 50 to 70 percent of the agricultural workforce — and a significant percentage of construction, hospitality, restaurant and other industries’ workers — are unauthorized and likely used false documents in the hiring process.
“Needless to say, growers and others are on edge with respect to the potential scope of newly initiated enforcement actions at a time of worsening labor shortages,” he said.
As I’ve said a couple of times in the past, it was only about 10 years ago that the federal government had turned a blind eye to illegal workers in the horticulture industry. It makes sense when Americans were being told for years that you were no longer a success if you didn’t have a college degree and a white collar job. Employers needed to look elsewhere to find skilled laborers.
The easy route is to look at this in terms of black-and-white and say, “they’re all criminals because they filed false documents.” While technically that’s true, it doesn’t tell the whole story. The order says “willful misrepresentation.” Does that include people who thought they had all their paperwork in order, but were deceived so someone further down the line could profit?
From my days as a journalist in Hillsborough County, Florida, I know many migrant workers — both illegal and legal — are illiterate. There were several missions in the agricultural South County area that aimed to help these workers learn to read.
What if a recruiter assured illiterate workers all their paperwork was prepared and filed, and lied in order to fill more open positions? It’s not a crime to be illiterate, and it’s not a crime to trust someone. In these cases, is the illegal worker actually guilty by the definition of the executive order? That will be an interesting one for the courts to decide if it comes to that.
As Regelbrugge pointed out, the timing of the enforcement could cause several industries major problems. I imagine most people would not have a problem with quickly going after convicted criminals, but do people with erroneous paperwork need to be treated with the same gravitas, especially since wink-and-nod immigration agreements between the government and horticulture industries went unchallenged for so long?
I feel this is akin to changing the drinking age to 30, then immediately sending people out to arrest anyone in their 20s with beer in their fridge. Surely, there should be some sort of grandfather clause that would allow for some leeway in the timing of enforcement.
Then again, as Regelbrugge pointed out this week, the recent raids are targeting the criminal element. Maybe the government is taking a step back and considering the impact of a blanket action instead of a more even-handed approach.
So what does this all mean for growers for the time being? As industry leaders have said over and over again, be prepared for anything. Make sure you have your paperwork updated, double-checked and submitted correctly.
And as we’ve said, make sure you have a current HR program, like Sage HRMS, to help your company stay on top of any legislative changes that could come down the pipe.
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