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Did Eliot Spitzer Use His Office to Commit or Facilitate a Crime?

On April 28th, in an unprecedented move, Attorney General Eliot Spitzer released a statement threatening employers, who were considering firing illegal aliens participating in the May Day Rally for "Immigrant Rights."


This Office has received inquiries about the legal obligations of employers to accommodate employees' requests to take time off to participate in activities scheduled for May1 recognizing the contributions of working immigrants to the national economy and local communities. Some businesses will be closing for the demonstrations, while others will remain open....


Federal labor law protects every employee's right to engage in concerted activities for "mutual aid and protection," including calling for change in existing laws to improve working conditions. The courts have held that participation by employees in demonstrations and rallies like those planned for May 1 are protected activities under that provision.


Employers may impose reasonable requirements needed to keep their businesses functioning, and employees must comply with those requirements. However, if adverse action, including discharge, is taken against employees solely because of their participation in these activities, the employer may be found to have violated the rights of those employees and could be subject to legal action.

This seems like a straight forward statement, except that it is based on a misstatement of federal law and court rulings.


As Hans Bader of the Competitive Enterprise Institute noted:


Spitzer's claim is very misleading. First of all, in the Hoffman Plastics case, the Supreme Court held that the National Labor Relations Act does not allow illegal aliens to sue employers for backpay, since they have no legal entitlement to work in the United States.

Second, and more importantly, even if federal labor law defines attending a rally for illegal immigrants as a protected activity for "mutual aid and protection," that only means that employees have license to attend such rallies on their own time. They cannot unilaterally take off work en masse and shut their employer down, since employers have a right to keep their businesses functioning.



While it is possible that Mr. Spitzer and the staff at Attorney General's office are merely ignorant of federal law, the statement is well in line with the Attorney General's longstanding history of supporting illegal aliens.

Since knowingly employing or continuing to employ illegal aliens is a crime Immigration and Naturalization Act Sec. 274A. [8 U.S.C. 1324a]), then wasn't the attorney general using his office to coerce employers into committing or continuing a crime?

Moreover, is this not an inducement for illegal aliens "to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law" (Sec. 274. a1A iv. [8 U.S.C. 1324])

While this may or may not live up to the standards of conspiracy to commit a crime, it certainly looks like the facilitation of illegal acts to this non-lawyer.

by Ron Lewenberg, Wednesday, May. 10 | Permalink