Did Judge Give Employers Hiring Illegal Immigrants a Free Pass?

This is a rush transcript from "Your World with Neil Cavuto," September 4, 2007. This copy may not be in its final form and may be updated.

NEIL CAVUTO, HOST: All right. Well, my next guest thinks that the judge in San Francisco did make the right decision. Cathy Gurney owns Sierra Landscape & Maintenance. And at least 50 percent of her workers are still illegals.

So, Cathy, you freely admit that. So, a judge, many would argue, gave you a pass today. Did she?

CATHY GURNEY, OWNER, SIERRA LANDSCAPE & MAINTENANCE, INC.: Yes, I would say that, not necessarily a pass, but gave us an opportunity to further try and obey the law that — that our country has given us.

And, as you and I have talked about before, it — it wasn't really clear-cut. And it has been difficult to follow. And, as an employer for the last 27 years, I have done what the government asked me to do by filling out the I-9s. I think the glitch has been not knowing whether or not and not having the ability to find out that the information my employees are giving me is the correct information.

CAVUTO: But, Cathy, your gut must be good enough for you to suspect that half of your workers are illegal.

GURNEY: Well, whether my gut tells me that or not, at this point, without getting myself into another lawsuit of discrimination, I can't walk up to them and say, is this number correct or not, or, are you illegal or you not legal?

CAVUTO: Well, why can't you? Why — why can't you do that? What are you risking?

GURNEY: Because — what am I risking? Because I am risking a lawsuit. What if I ask somebody that is, and takes offense to that, and then decides to sue me?

(CROSSTALK)

CAVUTO: Well, Cathy, wait. You are risking a bigger lawsuit if you knowingly hire illegals, and now you have INS and potentially Homeland Security on you, right?

GURNEY: Well, Neil, I'm not — I am not intentionally hiring undocumented workers. I am doing the same thing that every other employer in this country is doing. They fill out...

CAVUTO: But, Cathy, I understand that. And — and I know you do not pay sub-minimum wage. You pay them a good buck.

GURNEY: Right.

CAVUTO: We should stress that.

GURNEY: Right.

CAVUTO: But you did suspect that half your workers are illegal.

Now, you are telling me that. And — and — and I commend you for your honesty. But anyone hearing that is going to say, well, that is not right. That is not — that is not right.

GURNEY: Well, and if — if you talk to any attorney, they're going to tell you the same thing. And even Social Security and Homeland Security themselves said in all the letters that have been coming to employers and that I have been getting through the Internet that you can't just walk up to them and say, I think that you are undocumented, and so I have to let you go.

I have to follow the rules that Social Security...

CAVUTO: But — but you would be violating nothing if it turns out, Cathy, they were here illegally and they shouldn't be here, period. There is no risk to you for saying, look, I suspect that you may not be here legally.

If it turns out that that person is not here legally, you have done nothing wrong. If anything, you have done a patriotic act by getting someone out who shouldn't be here.

GURNEY: But it is not a patriotic act, because anyone that is working for me, as long as I have filled out my I-9s, like I have, like the government asks me, I have to now wait until I get a letter.

Now, if I get a no-match letter — actually got one a couple weeks ago — and every one of the people that was listed in that no-match letter worked for me four years ago. None of them were — are currently working for me. I have no idea where they are. And I will follow the direction that Social Security and Homeland Security has me do.

CAVUTO: But...

GURNEY: And that's what — that's what they're telling me.

CAVUTO: All right. I understand that, Cathy.

(CROSSTALK)

GURNEY: And that's what I will do.

CAVUTO: But, finally — and I — I wish we had more time here, but you can't go up to any one of your workers — we should stress you own a landscaping, very successful landscaping business — and just say, you know, I just have the feeling this I-9 and some of this other information I have on you is not right?

You are afraid to do that?

GURNEY: No, I am not afraid. I'm not — I cannot do it. I can't violate their right to work in the United States, until I am told...

CAVUTO: They don't have a — but, Cathy, they don't have a right at all.

GURNEY: But I don't know that.

CAVUTO: They don't have...

(CROSSTALK)

GURNEY: But I don't...

CAVUTO: You have every right to ask, right?

GURNEY: You don't know that.

But — no, I am not allowed to ask. That is not the directive that has come down from Homeland Security. And that is not the directive that has come from Social Security.

CAVUTO: No, what Homeland Security wants, Cathy, is just make sure the paperwork is right and accurate...

GURNEY: That's right.

CAVUTO: ... and, if in doubt, for you to check it out, under no — under no risk to you.

You interpret it as that being risky?

GURNEY: I do interpret that as being risky...

CAVUTO: Interesting.

GURNEY: ... because what if I ask — what if I ask the wrong person..

CAVUTO: All right.

GURNEY: ... and then that person is legal, and they say, you know what, because I have a Spanish surname or because I have a name other than what you classify as American, now you are telling me that you don't think I am legal, and they are going to sue me? I'm not going to leave myself open for that. I'm going to do what the government asks me to do.

CAVUTO: Well, this Homeland Security measure apparently protects you in that event. But you don't buy it?

GURNEY: They are not telling me that, tomorrow, I can show up at work...

CAVUTO: I see.

GURNEY: ... and line all my people up and say to them, are you legal? Are you not legal?

CAVUTO: All right.

GURNEY: No. That is not what they're asking me to do.

And that's — it isn't what I will do. I will wait for Homeland Security. And I will wait for my no-match letters to come. And I will follow that to the letter of the law.

CAVUTO: All right. Cathy, we will see what happens — Cathy Gurney.

Again, this judge has ruled in San Francisco this has got to sort of sit and chill until at least October 1, until they get a hearing on this.

GURNEY: Right.

CAVUTO: And then we will see the fate of the Cathy Gurneys and others just like her. Cathy, thank you very much.

GURNEY: That's right. Thank you, Neil.

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