Laws: April, 2003 - Number #2

After a seven-week trial, Tyson Foods and several managers of poultry processing plants were acquitted in March 2003 of charges that they conspired to recruit and smuggle unauthorized workers to work in poultry processing plants. Tyson managers had paid INS agents posing as smugglers $100 to $200 for each worker brought from the border to 15 plants in nine states (the migrants also paid the smugglers a fee). The government argued that Tyson's top management knew what the managers were doing; Tyson argued the plant managers were breaking company rules on their own.

The federal charges were the first against a large US company. Tyson has 120,000 employees and annual sales of $11 billion (it had 67,000 employees in 1997, when the smuggling occurred, and added employees when it merged with IBP). Employment in the US meat and poultry processing industry is 400,000, so Tyson accounts for almost 30 percent of the industry's workers.

Some of the workers employed in the plants were hired through temporary employment agencies to avoid detection of their unauthorized status. Tyson participated in the INS's Basic Pilot employee verification system, which checks data from newly hired non-US citizens against INS databases. The government said that Tyson enrolled in the Basic Pilot program to deflect attention from its hiring of unauthorized workers via agencies.

The major charge in the case is that Tyson managers conspired to hire unauthorized workers to boost Tyson profits, making them, in the prosecution's phrase, "pinstriped coyotes." If convicted of conspiracy, Tyson could have faced forfeiture fines of over $100 million, based on allegedly illegal profits derived from lower wages paid to the unauthorized and other workers.

The government alleged that Tyson "did cultivate a corporate culture in which the hiring of illegal alien workers" was condoned by management "to meet its production goals and cut its costs to maximize Tyson profits." According to the government, Tyson sought unauthorized workers "who would work for low wages and never complain - no matter how much they were exploited - because they were illegal aliens." In some plants, unauthorized workers outnumbered legal workers.

In March 2003, the federal judge hearing the case dismissed 24 of the 36 original charges for insufficient evidence as the government ended five weeks of testimony. The judge asked the jury to deliberate on the remaining 12 charges, including the charge that Tyson's top management conspired to violate US immigration laws.

Tyson's defense was that a few rogue employees hired unauthorized workers despite company policy to hire only legal workers. Its attorney said: "It is not the fault of this company that there are approximately eight million undocumented workers in the United States. It is not our fault that the systems that the government has set up for hiring employees is not perfect. If the prosecutors and the government want a perfect system, the government ought to be designing it."

The investigation of Tyson began in 1997, and undercover INS agents sent 154 unauthorized workers to six Tyson plants before the company was indicted in December 2001. Charles "Chuck" Cook, a former personnel manager at Tyson's Glen Allen, Virginia plant, testified that the starting hourly wage in 2000, $7 an hour, was too low to attract legal workers, especially because Tyson normally did not give pay increases until a worker completed three years. Some of the workers supplied by outside temp agencies received less than $7 an hour.

The manager of the Shelbyville, Tennessee poultry plant testified that he needed 1,100 workers to process 1.3 million chickens a week, but Tyson would not allow him to raise entry-level wages above $7.15 an hour, which was not enough to attract workers from nearby pencil factories.

The Tyson acquittal may discourage other federal attorneys from bringing major sanctions cases against US employers. It may also complicate private lawsuits that hoped to use the federal Racketeering Influence and Corrupt Organizations law to collect triple damages in cases where employment of unauthorized workers depressed wages for legal workers. Private attorneys bringing these RICO suits hoped that, as in federal anti-trust cases in which the government first proves that anti-trust laws were violated and then shareholders use the conviction to file civil lawsuits alleging that the company's unlawful actions artificially inflated the stock price, federal convictions could make their job of proving a conspiracy to lower wages easier.

Airports. After September 11, 2001, the INS mounted a major enforcement effort to check the identities and right to work of workers employed at US airports, especially those with security badges that gave them access to planes. Under Operation Tarmac, the INS obtained from employers the I-9 forms of employees, and then interviewed those workers who appeared to be unauthorized. Federal prosecutors charged workers who answered employment questionnaires incorrectly or used false documents to conceal previous felony convictions.

However, judges and juries in most cases did not find the defendants guilty, noting that the questionnaires completed by applicants were printed only in English, and finding that there was ambiguity in some of the questions asked. The Rocky Mountain News reported that almost two-thirds of 110 people charged in September 2002 with using false Social Security numbers to get jobs at Denver International Airport had not been apprehended, and that none of those charged went to jail. The US Attorney said that most of those who were not found were illegal migrants who returned to Mexico or took jobs that did not require security clearance.

In advance of football's Super Bowl on January 26, 2003 in San Diego, the INS mounted a similar screening of employees of taxi, security and other Bowl-related firms, and detained 69 foreign-born cab drivers and private security guards. As with Operation Tarmac, the INS reviewed the I-9 forms on file for employees of the firms, and interviewed those workers who appeared to be unauthorized.

The INS reduced sanctions enforcement in the 1990s. There are about eight million employers in the US, but never more than 2,000 of the INS agents responsible for enforcing employer sanctions laws and detecting and removing criminal aliens. Employer investigations peaked at 7,788 in 1998--1,595 employer investigations were completed in FY2001.

The number of US employers fined for immigration violations declined from a high of 1,063 in 1992 to 78 in 2001. Arrests at workplaces also have fallen sharply, from 17,552 in 1997 to 418 in 2001. In a policy shift in 1999, the INS decided to focus on apprehending foreign criminals and smugglers and detecting benefit fraud rather than preventing unauthorized workers from holding jobs.

In June 2002, then-INS Commissioner Ziglar testified that there were 1,920 investigators, and that half had been assigned to work with the FBI on terrorism cases. With 300 assigned to other tasks, there were 700 to do internal enforcement, including tracking down foreign criminals. Ziglar said the INS ran out of investigators long before he got down to the task of enforcing employer sanctions.

The General Accounting Office summarized the sanctions enforcement problem as follows: "Large numbers of unauthorized (workers) have either fraudulently used valid documents that belong to others or presented counterfeit documents as evidence of employment eligibility. As a result, unauthorized (workers) have been able to circumvent the current employment verification process, thereby making it difficult for employers who are willing to comply with the law by hiring only authorized workers to do so."

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 required the INS and Social Security Administration to test and evaluate several voluntary pilot programs that can electronically check the authorization of newly hired employees to work in the US. In an evaluation of this basic pilot employee verification system done by the INS, the agency concluded that it is "not ready for larger-scale implementation at this time…[because] The basic pilot database did not yield conclusive data on the use of fraudulent documents and cannot identify imposter fraud [as when a newly hired worker claims to be a US citizen]. However, the level of false attestation to US citizenship appears to be low."

Basic Pilot should quickly test whether the documents submitted by newly hired workers are valid in a manner that does not aggravate discrimination. The INS noted that, because its databases are not accurate, some workers were wrongly denied jobs. About 10 percent of the documents submitted by workers were fraudulent, or were cases in which identity and work authorization documents did not match.

In Iowa, chicken farmer John Glessner Jr. agreed in March 2003 to at least a $300,000 civil forfeiture rather than take a chance in court defending a Racketeer Influenced and Corrupt Organizations Act charge that he conspired to employ unauthorized foreigners. If he had been convicted, he could have lost his $20 million egg farm. RICO is becoming popular for lawsuits attacking the employment of unauthorized foreigners because damages can be triple the amount of other claims.

Five unauthorized migrants were killed in March 2003 while hiding in a sugar cane field 40 miles north of the Mexico-US border that was being burned to remove excess leaves before it was harvested. The migrants were from Guatemala, and a survivor said they were headed to a cousin in New York City.