Employers not required to report illegal workers

By ANABELLE GARAY / Associated Press

Did a suburban Dallas employer go too far when it told police about a job applicant who presented what turned out to be a counterfeit social security card?

Relatives and advocates for Maria Martinez say that's what happened when she was arrested, jailed and deported as an illegal immigrant after applying for a hospital cafeteria job.

But a spokeswoman for Trinity Medical Center in Carrollton contends the hospital was simply following policy and has a responsibility to report criminal activity, including possible identity theft, to the proper authorities.

During yet another year marked by several high profile immigration raids targeting both undocumented workers and the companies who hire them, the case raises questions about what employers can or should do if they discover an applicant is not authorized to work legally in the U.S.

Martinez, a single mother of a 3-year-old son and a teenage daughter, showed the hospital's cafeteria director a social security card when applying for a job there in July and also included the card's number on her application, according to police reports. About a week later, however, a background check revealed the number had been issued to a person who had since died.

The hospital's personnel director notified Carrollton police of the discrepancy. Detectives also were informed that Martinez had an appointment the next day at the hospital's human resources office, according to documents filed in the case.

Police were waiting at the hospital and arrested Martinez on a charge of tampering with a government record.

According to police, Martinez acknowledged buying the social security card for $110 at a Wal-Mart. She also had a second social security card and two counterfeit cards stating she was a legal permanent resident.

Martinez initially planned to fight the state charge but after being held in jail for nearly three weeks, she agreed to be deported to Mexico in August. Her son later joined her in Mexico.

"She told me to please forgive her. She told me she wasn't strong enough to fight," said Martinez' 19-year-old daughter, who spoke on condition of anonymity because she also is in the U.S. illegally.

What makes Martinez' case stand out is that employers aren't required to report someone suspected of a crime, attorneys say. They also aren't mandated to report a worker or applicant suspected of being in the U.S. illegally, say immigration attorneys and enforcement officials.

"For an employer to go ahead and take it upon themselves ... to report that is unusual," said immigration attorney Kathleen Walker. "There's no obligation on my part to go call law enforcement."

U.S. Immigration and Customs Enforcement spokesman Carl Rusnok agreed, saying employers and local police typically don't have the training needed to determine whether someone is in the country illegally.

Carrollton's mayor has emphasized that one of his priorities is to rid the city of illegal immigrants. In the neighboring suburb of Farmers Branch, city officials have unsuccessfully tried to prohibit landlords from renting houses and apartments to tenants who cannot prove they are in the U.S. legally.

But hospital spokeswoman Susan Watson said the decision to report Martinez had nothing to do with the immigration debate swirling in suburban Dallas. The hospital reported what it considered a crime, said Watson.

"Regardless of whether they were an illegal alien, legal immigrant or an American citizen, it still wouldn't have mattered, they still would have been reported," she said.

Watson said it was the first time in at least two years that the hospital reported a possible crime involving a worker or applicant to police. But officials are always on alert because many employees have access to patients' medical records and other private information, she added.

Immigration attorneys and others, however, are concerned that many employers have become overly cautious, to the point that they may be bending or breaking the law, as well.

Laws and policies prohibit employers from scrutinizing a job applicant's identity or work eligibility before they are hired, said Walker, an El Paso lawyer and former president of the American Immigration Lawyers Association.

"When people are being prescreened before a decision to hire is being made, then you could have exposure to discrimination charges," she said.

Recent workplace raids around the country have increasingly led to prosecuting unauthorized workers for identity theft and use of someone else's social security number. But those have resulted from federal investigations by ICE agents into workers at specific companies, not calls from an employer to local police.

Still, those raids have left employers edgy, said Muzaffar Chishti, director of the Migration Policy Institute at NYU School of Law.

"I think employers are beginning to feel the pinch and in many cases I think they are trying not only to be sort of extra cautious but ... to be pre-emptive," said Chishti. "What's troubling is that employers have taken it upon themselves the job of ascertaining whether a crime has been committed."