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Subject: Appeals Court Upholds INS Ruling on Hiring of Illegal Aliens<By Daniel B.
Date: Mon, 9 Nov 92 05:41:19 EST
Message-ID: <7.1992Nov9.054120@AmeriCast.com>

Appeals Court Upholds INS Ruling on Hiring of Illegal Aliens<By
Daniel B.  Moskowitz=

 When Congress in 1986 for the first time made it unlawful for an
employer to hire illegal aliens,the lawmakers decided to go easy
on first offenders but to have the penalties step up significant-
ly the second time an employer was caught violating the law.

 Last month, for the first time, a court ruled on the applicabil-
ity of that approach to a company that hires workers at many dif-
ferent locations. The business involved in the case, a chain of
155 cafeterias, argued that each location should be considered
separately, and no second-level penalty imposed until there was a
second hiring violation at that site.

 The penalty in dispute was actually for the third time the chain
had been cited for having on its payroll workers without neces-
sary papers. The first time was in 1988 at a cafeteria in Aurora,
Colo., the second later that same year in Kansas City, Mo., and
the third in Olathe, Kan.

 The company divides hiring authority for nonmanagement employees
between the regional manager and the boss at the individual
eatery. The government was willing to treat Aurora and Kansas
City as separate entities because they are in different regions,
but insisted that the Olathe infraction merits a second-level
penalty because that outlet is under the same regional manager as
the one in Kansas City.

 The U.S. Court of Appeals in Denver bowed to the Immigration and
Naturalization Service interpretation, saying that the INS's view
of the meaning of the law should prevail as long as it is not
"clearly erroneous."

 The 1986 immigration law addressed the issue, saying that "dis-
tinct, physically separate subdivisions" of a company would be
considered a separate employer if they hired "without reference
to the practices of" another part of the corporate group.

 Ironically, the Oct. 9 opinion in Furr's/Bishop's v. INS points
to efforts by the company to comply with the new immigration law
as proof that the individual cafeterias were not operating on
their own. The company conducted a training course for managers
when the law went into effect, adopted a compliance policy and
retained the right to discipline individual cafeteria mangers who
ignored the law's mandate.

 Restaurant trade groups had warned the appeals court that if it
okayed the second-tier penalty, food-service chains would just
walk away from efforts to educate managers on the immigration
law, hoping to prove that there was no central authority.

 But the INS argues that it is likely that just the opposite will
happen: that with the threat of bigger penalties, top corporate
brass will get more involved in seeing to it that the law is
obeyed.  In other cases, courts ruled that:

Individualborrowers cannot sue to enforce the Community Reinvest-
ment Act. That law tells financial institutions to funnel loans
to their own communities. But, the U.S. District Court in
Columbus, Ohio, ruled, Congress meant only that bank regulators
should lean on the institutions to lend locally. It takes so much
expertise to determine whether a potential loan is sound that
only the regulators - not judges or juries - can determine if it
should be made, Judge George C. Smith said.  Earlier this year,
the judges of the U.S. Court of Appeals in Chicago also indicated
that they did not read the law to authorize suits by private in-
dividuals.

 Harambee Uhuru School v. Kemp, Sept. 30>Renters of unlicensed
property have to prove they were hurt by the lack of a license to
get their rent back. That holding by the Maryland Court of Ap-
peals is a retreat from a 1986 decision by the same court, which
then said that a landlord "may not retain any benefits from the
unlicensed lease."

 The judges of the state's highest court now say they meant that
rule to apply only in the case of property in such bad condition
that it would not meet licensing standards.  Under the newer in-
terpretation, landlords who simply failed to get a license re-
quired by country ordinances won't be made to return all
rents.<CitaraManis v. Hallowell, Oct. 14>The government cannot
bring criminal charges under the Clean Water Act against execu-
tives and companies who put their own employees at risk by the
way they treat pollutants. The U.S. Court of Appeals in Boston
threw out a conviction of the owner of a metal finishing company
who had been found guilty of "reckless endangerment" under the
act and ordered to serve 26 months in prison and pay a $400,000
fine.

 The lack of care with which water with nickel plating wastes and
nitric acid was handled in the Burlington, Mass., plant was
"utterly reprehensible," the judges found. But they said the sta-
tute makes it a crime to endanger persons by putting polluted
runoff into a public sewage system; it does not cover those who
might be harmed from the waste before it gets to the sewage sys-
tem.<

U.S. v. Borowski, Oct. 7> Daniel B. Moskowitz writes about legal
trends and their impact on business.<04:33 11-09C9999-----

Copyright 1992, The Washington Post.  This story is from the
Washington Post's Capitol Edition On-Line and is not to be ar-
chived or redistributed.

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