19 marzo 2019

Hiring Foreigners and the Rise in Unemployment

Argentina has always had a very open and flexible immigration policy. The National Constitution puts foreigners on an equal footing with local citizens just from the start, on the Preamble when it gives fundamental rights to “all men of the world who wish to dwell on Argentine soil”.

Published in El Cronista on March 19, 2019
Any foreigner should regularize their situation, changing their status from tourist to foreign resident, and eventually applying for Argentine citizenship, if they wish to do so. There are criminal background checks to enter the country, and foreigners may get deported if they commit crimes.

Hiring undocumented foreigners is a hypothesis for unlawful work. Many claims with varied results have been brought against companies who hire foreigners using different hiring forms not far from enslaved work. In this regard, the Court ruled that for employers to be held liable for facilitating foreigners’ unlawful stay to get a profit, evidence should include the way in which workers are hired, their working hours and days, agreed wages and the circumstances that may prove that the recruitment of foreigners without legal residence is a business strategy to reduce labor costs. (National Court of Appeals in Federal Criminal and Correctional Matters, Panel II, August 27, 2013, D.H.K. on prosecution. La Ley Online. AR/JUR/48478/2013).

In another case the Court found that the accused should be prosecuted for enslavement in a concurrence of criminal offenses facilitating foreigners’ illegal stay if there is prima facie evidence that foreign people were lured to come to Argentina by promising them work and then kept them clandestinely, subject to long hours of work under indecent conditions (National Court of Appeals in Federal Criminal and Correctional Matters, Panel I, August 23, 20177, L.H.,E. J. et al published in Sup. Penal 2011 (November), 54 La Ley 2011-F, 414 LA LEY November 18, 2011, 5 LA LEY 2011-F, 444 DJ December 7, 2011, 76 LA LEY December 19, 2011, 5 LA LEY 2001-F, 700, AR/JUR/45072/2011).

The owner of a garment workshop should be prosecuted for the crime under Section 117 of Act No. 25871 because foreign citizens with no residence papers used to work there long hours for meager wages. Based on these circumstances the Court concluded that the accused took advantage of their irregular migratory status as a “corporate policy”, i.e. as a way to get a profit. (National Court of Appeals in Federal Criminal and Correctional Matters, Panel I, November 25, 2010, Apaza Yapura, Victoria et al. published in Sup. Penal 2011 (February), 60 LA LEY 2011-A, 442. AR/JUR/73649/2010).

The fact that the worker is an illegal immigrant does not prevent him/her from claiming wages or damages because even though according to Section 53 of Act No. 25871 foreigners residing irregularly are forbidden from working, and in turn natural and artificial persons are forbidden from employing them, these constraints should be examined under the terms of Sections 40 and 42 of the Employment Contract Act [Ley de Contrato de Trabajo] considering that the aim of the law is to prevent companies from hiring undocumented foreigners to avoid applicable law. (National Court of Appeals, Panel II, October 12, 2010, Ortiz Ramirez, Eugenio v Cespedes, Alan Joel. DT 2011 (February), 347, with a note by Liliana H. Litterio. AR/JUR/66281/2010).

Having acknowledged that foreigners have the right to work under employer-employee relationship, subject to the same rules that apply to local workers, the question is why today immigrants are given so many opportunities that local workers do not get.

To some extent, some people might say that immigrants are more willing to cooperate, less likely to be part of union claims, and very eager to find and keep a stable and permanent job. This is because they come from countries with serious social, economic and labor issues. Others may argue that they accept to work for the minimum wage of the sector instead of the salary expectations typical of the market; they are responsible employees who fulfill all the obligations, very respectful and do not challenge the authority.

Right now the rate of unemployment and underemployment both for those Argentine people who are actively looking for a job and those who are not is on the rise, as opposed to the latest significant increase in the hiring of immigrants who are widely available and willing to cooperate, no doubt.

By Julian A. de Diego
Director of the postgraduate course on Human Resources at the School of Business at UCA.