By Bruce Buchanan
In highly publicized news, on August 8, 2019, Immigration and Customs Enforcement (ICE), acting through Homeland Security Investigations (HSI), raided food processing plants for four companies, Koch Foods, Peco Foods, PH Food, Inc., and A&B Inc. in small towns near Jackson, MS and detained 680 mostly Latino workers.
Why weren’t Food Processing Plants’ Managers and/or Owners Arrested?
One of the prominent questions related to the raids discussed on social media as well as media is – why weren’t managers and/or owners of these plants arrested? A great question as one is watching 680 poultry employees being detained and led out of the plants on their way to detention facilities. There is no doubt that the companies are under investigation by ICE. If not, ICE would not have sought or received criminal search warrants.
The simple reason is the companies are still under investigation and HSI agents are carefully analyzing the millions of pages of documents obtained from the companies through the criminal search warrants. Most likely, after this analysis, many managers of these plants will be indicted by federal authorities. As for the owners, the government will need to show their involvement and knowledge of the hiring and employing of undocumented workers. Remember, an employer only violates the law when it knowingly, either actual of constructive, hires and/or employs undocumented workers. Often, undocumented workers obtain “fake papers” from counterfeiters. These “fake papers” are difficult for a lay person to determine as fraudulent. The standard is whether it appears genuine and relate to the person. This is not a high standard. Employers are not required to put documents “under a black light.”
Records Sought Through Criminal Search Warrant
So, what kind of records and documents was HSI looking for in these raids with criminal search warrant? The following are some of the documents sought:
1. All documents, records, and implements (whether in electronic or hard-copy format), information and communication relating to violations [concerning] Unlawful Employment of Aliens, Fraud and misuse of visas, [work] permits, and other documents to gain employment, Fraud in connection with identification documents, authentications features, and information, False statements to obtain benefits or employment, and Use of Unauthorized Social Security Number;
2. Labor and employment records including service agreements, independent contractor agreements, I-9s, volunteer worker agreements and statements, lists of workers (paid or unpaid), job assignment sheets, duty rosters, employment applications, personnel files, worker identification documents, and electronic communications related to the same;
3. Business records including payroll records, timesheets, lists of employees, communications with outside payroll services providers; bank records, financial statements, bookkeeping/accounting records, and notes, including records disclosing the identity and purpose of all deposits, withdrawals, debit and credit memos, interest received on the accounts;
3. Identification documents including driver’s licenses, state identification cards, birth certificates, Social Security cards, Permanent Resident cards, or any other documents that may be used to enter, remain, or work in the United States, including counterfeit immigration documents and/or seals;
4. Any and all correspondence to or from PH Food, Inc. and the U.S. Department of Labor, Social Security Administration and the IRS with regard to employee identification documentation provided by PH Food, Inc.;
5. Employee identification cards and copies of employee identification cards;
6. Documentation of business ownership, organization, and control including articles of incorporation and corporate minutes;
7. United States or foreign passports, visas;
8. Evidence of who used, owned, or controlled the computer at the time the things described in this warrant were created, edited, or deleted;
Results of Other ICE Raids
After the analysis of these documents, I fully expect a number of indictments against managers of these plants. In worksite raids or investigations, often managers and owners are indicted and found guilty or plead guilty. After the raid at Southeastern Provision in Bean Station, TN in April 2018, the owner, James Brantley, was indicted and pled guilty to knowingly employing undocumented workers and tax fraud. He has paid $1.4 million in restitution and is serving 18 months in prison.
In raided employers at Postville, IA and Laurel, MS back in about 2008, managers were charged, convicted and sent to prison. In large scale fraud investigations at Asplundh and Waste Management over the past few years, managers have been convicted and served time in jail.
Conclusion
These are crazy times for employers. There is stricter enforcement of immigration laws against employers, more state laws involving immigration and employment, and more lawsuits filed by employees or ex-employees. There is no doubt that ICE has increased enforcement and will continue to increase worksite enforcement. Thus, employers need to become proactive in immigration compliance as opposed to reactive. As an employer, you don’t want to face an ICE raid. The disruption caused by ICE raids of employers can be significant, causing temporary shutdown of operations as so many employees are detained that can’t run the plant, and civil and criminal charges for employers who knew the employees were undocumented.
Siskind Susser PC [email protected]
www.visalaw.com