Rep. Jim Nickels’ proposed HB 1013, which would allow the Contractor’s Licensing Board to impose sanctions on any contractor who, following proper notice and a hearing, “is found by the Contractors Licensing Board to knowingly employ workers without legal authorization to work in the United States either directly or through a subcontractor,” went to committee yesterday.
As I wrote in the preview to this bill, the upside to this bill is:
Theoretically, the bill would open up jobs by forcing the firing of any illegal immigrants currently employed. In turn, it would be a disincentive for illegal immigrants who were in Arkansas to remain in Arkansas if they could find work in a neighboring state more easily, which would (one assumes) lessen state costs associated with illegal immigration/immigrants.
You would think that this bill would be appealing to Tea Party types. (You know, the people who think that the Arizona “papers please” law is a good idea because it will let Arizona DEPORT ALL DEM MEXUHCANS DAT URR TAKIN’ URR JEEEEOOOOBS! Those types.) You might also assume that Republican lawmakers would understand how statutory construction works and would understand the scope of this bill.
You would be wrong on both assumptions.
It seems that both the Tea Partiers and certain Republicans on the State Agencies Committee have their collective knickers in a knot over the idea that contractors might be held responsible for the actions of sub-contractors. For example, Laurie Masterson — of American Majority and attempted-book-banning-in-Fayetteville-schools fame — complained on her blog:
However this bill seems to take it a step further and put the onus on Arkansas’s General Contractors for who Sub-Contractors might hire. I am not sure how they expect GCs to “control” or even monitor who a private business hires. I guess it could be done if the GC hired a full-time staff to investigate and research all Subs and Sub employees, wonder how privacy laws would impact that. Putting additional regulations on small business owners is certainly not a growth incentive for Arkansas business.
Not to be outdone, Keep Arkansas White Legal whined in Glenn Beck-ian fashion:
HB 1013 is NOT what it is appears to be!!
It’s just an Anti-Contractor bill to try and advance the Union advantage.
We are a Right to Work state.
This bill doesn’t really care about illegal aliens, they just want to force contractors to be liable for other people’s employees (i.e. subcontractors, a seperate legal entity)
Contractors are already responsible for hiring their own legall labor.
The bill is backed by the IBEW… the Union that was the muscle for Obama… think they are all about stopping illegal immigrants?????
The only emails we’ve gotten FOR the bill have come from organized labor.
This bill is really about furthering the Union’s Hold over our Job force.
During the committee meeting, Rep. Ed Garner (R-41) and Rep. Ann Clemmer (R-29) took up this same issue. Rep. Garner went first and, in a contentious tone that belied his total lack of understanding, harped on the “through a subcontractor” liability, asking repeatedly if a contractor would be able to use E-verify on a subcontractor’s employees. Rep. Clemmer took a more friendly approach, though still couched her concerns in the “through a subcontractor” liability, before proposing a “friendly amendment” (her words) that would allow a contractor and subcontractor to sign a waiver that relieved the former of any liability under this law for the actions of the latter.
But here’s the thing: the statute specifically requires that the contractor “knowingly employ” illegal works. The key word here is knowingly, which, generally speaking, is defined legally as:
A person acts knowingly with respect to:
(1) his conduct or the attendant circumstances when he is aware that his conduct is of that nature or that the attendant circumstances exist; or
(2) the result of his conduct when he is aware that is it practically certain that his conduct will cause the result.
Translation: All of this hand-wringing by opponents of the bill only makes sense if one is worried about contractors being held liable when they already KNOW that a subcontractor hires illegal workers and then chooses to hire that subcontractor anyway. Think about that for a second.
Say contractor X is looking for a subcontractor to put in a floor in a new house. He knows two subs — we’ll call them Y and Z. He also knows that Y hires illegal workers, and he does not have any reason to suspect that Z does. If he nevertheless hires Y because Y is cheaper, why shouldn’t the contractor be held liable under this law? On the other hand, if he hires Z and it turns out that Z does have illegal works, the contractor would not be liable. What about this is offensive to anyone?
I have to assume that the opposition comes from a lack of knowledge. Otherwise, the answer is the much-less-flattering blatant hypocrisy of opposing this bill simply because the Home Builders Association opposes it. Surely groups who are so strongly anti-illegal workers would not oppose a bill just because lobbyists with lots of cash want them to, right?
So, assuming it’s just ignorance, the fact that Laurie Masterson and other non-legislator Tea Partiers did not realize the importance of “knowingly” in the bill is not surprising. I would wager that most lay people do not. (Though, at the same time, most lay people are not ranting about how this bill is just an anti-contractor bill that will hurt small business, but having your facts straight has never really slowed people like Masterson.)
What is surprising and, worse, a little disheartening, is that veteran legislators like Reps. Garner and Clemmer did not realize this. Rep. Clemmer rambled at length in an analogy about how, if she hired someone to clean her house and then left for the day, she had no way of knowing who the house cleaner brought in. Rep. Clemmer apparently could not see that her own analogy failed the “knowingly” part of the law.
Maybe I am crazy, but I don’t think it’s asking too much to expect the people elected to make laws to understand the importance and impact of all the words in a law. At the very least, I do expect that those who don’t understand just remain quiet and let the rest of the people figure things out.
In a bizarre postscript, Kenny Wallis, Little Rock Coordinator for Jeannie Burlsworth’s merry band of loons, attended Wednesday’s meeting in hopes of speaking out against this bill. The Secure Arkansas website doesn’t explain their position on this bill, but Wallis’ online column for the examiner explains:
There are some bills that deal with illegal immigration. One of them is HB1013. The bill could hurt the few companies too lazy and corrupt to hire legal workers, but it also has an e-verify clause written in it. E-verify means more government control with far less results.
That’s right, Wallis opposes this bill because it doesn’t go far enough. Even though he admits that it “could hurt the few companies too lazy and corrupt to hire legal workers,” the fact that the bill allows for the use of E-verify offends Wallis’ sensibilities. For a group that so vehemently opposes illegal immigration, it seems borderline insane to oppose a bill simply because it utilizes a federal verification tool rather than…? Actually, Wallis doesn’t propose an alternative. Based on his opposition to anything resembling (cue scary music) GOVERNMENT CONTROL (/scary music), my guess would be that he and Secure Arkansas are not going to support anything short of public executions of both contractors and the illegal workers.