Revenge of the Wal-Mart nine

Posted: Nov 13, 2003 12:00 AM

How do people who deliberately set out to break American immigration law get to sue U.S. employers for breaking labor laws?

It's a question I had to ask myself when I read in The New York Times that nine illegal immigrants who worked as janitors at Wal-Mart were suing the retail giant and the cleaning contractors for whom they worked for failing to pay overtime and withhold taxes.

The nine immigrants, whose suit was filed in New Jersey, were among some 250 illegal immigrants picked up at Wal-Mart stores in 21 states during a sweep by Immigration and Customs Enforcement agents last month.

Illegal or not, they've dived into America's biggest melting pot -- the pool of plaintiffs in civil suits. And they don't seem overly concerned that they got there by flouting federal law, cutting in front of people who immigrate legally, perhaps obtaining illegal documents, and then getting jobs for which they didn't pay taxes.

They trusted in the certainty that they could find employers who will use the excuse that illegal immigrants will do the work that Americans won't do. Wrong. If employers pay good wages, they will find good workers. That said, some corporate suits think they have the right to pay people substandard wages and then let taxpayers pick up the tab for the public services needed to sustain their underpaid work force.

Wal-Mart spokespeople have denied legal culpability and say the chain insists that its contractors obey the law. But immigration officials also searched offices at Wal-Mart's offices. There were similar raids in 2001 and 1998.

There's a pattern here, and the pattern shuts out honest contractors. As a Bakersfield cleaning contractor told Forbes magazine, he was offered such a poor deal to clean grocery stores that he had to turn it down, because he couldn't do the work "legitimately."

"Like most Americans, I have a sense of outrage that people who violate our laws are then using our laws to get money or reward themselves for their illegal behavior," said Craig Nelsen, director of Friends of Immigration Law Enforcement. "On the other hand, the conditions under which these people worked were truly outrageous." No employer has a right to break labor laws.

John Keeley of the Washington-based Center for Immigration Reform believes that big judgments for illegal workers "could have a chilling effect" on employers who cut corners to increase their profits. Keeley wants to see the Wal-Mart plaintiffs win, if their case is solid -- and then be deported.

It's not fair to deport somebody who has endured these conditions, responded Steve Reyes, an attorney for the Mexican American Legal Defense and Education Fund (MALDEF) in Los Angeles, who is involved with a similar lawsuit against Albertson's.

That's the sort of selective approach to the law that has muddied the waters. Illegal immigrants decide which laws they can break. Employers decide which laws they can break. In the end, the law has no meaning, and would-be legal immigrants and law-abiding employers look like suckers.

Gilberto Garcia, the New Jersey attorney representing the Wal-Mart plaintiffs, said, "My clients are in the United States in violation of the law" and are "subject to deportation." Unlike MALDEF's Reyes, Garcia didn't say they shouldn't be deported. Instead, he said, "We're trying to send a message to unscrupulous employers, who are trying to take advantage of these people while other able citizens are in unemployment lines because these employers don't want to pay (legal immigrants and citizens) what they deserve."

The postscript to that message should be: Everyone caught breaking U.S. immigration laws pays the penalty.