Immigration Law and Its Impact On Business: Lessons From The Criminal Case Against Food Processor, Tyson Foods, Inc.

By Paschal Obinna Nwokocha
Attorney at Law

A year ago, a federal jury acquitted one of the United State biggest food processor, Tyson Foods, Inc. and three of its managers of all charges related to an alleged conspiracy to import illegal immigrant workers from Mexico and Central America. According to the American Immigration Lawyers Association, AILA, this closely watched case represented the first time a company this size had been targeted for criminal prosecution on these grounds.

In December 2001, after a three-year INS investigation into the company’s hiring practices, a grand jury handed down a 36-count criminal indictment against Tyson Foods and six of its managers. Two of the indicted managers pleaded guilty to conspiracy charges and a third manager fatally shot himself several months after the indictment was handed down. Prosecutors in the case charged that the remaining defendants knowingly employed illegal workers and actively recruited such workers as part of a scheme to meet the company’s labor needs and to keep wages depressed. The government sought to seize millions of dollars it claimed Tyson Foods had gained by employing illegal workers. The individual managers faced jail time and fines if convicted. Before the case went to jury, U.S. District Judge R. Allan Edgar dismissed 24 of the 36 counts for lack of evidence. The counts on which the jury deliberated and acquitted involved conspiracy to violate immigration laws, transporting illegal immigrants, and document falsification.

Employers are forced to make difficult subjective determinations about the validity of an applicant’s employment authorization documents and the government is required to waste valuable manpower and resources in trying to enforce ineffective laws.

The Immigration Service, now part of Department of Homeland Security, Department of Justice and the Social Security Administrative seem to be stepping up their enforcement action relative to immigration. The Immigration Service is focusing its efforts in deporting illegal alien, or non-citizens who may have violated their status in U.S. The Department of Justice at the same time is stepping up enforcements actions against employers. The Social Security Administration sent out more than 950,000 “ no match” letters to employers in 2002, and most likely to surpass that record this year.

These actions at times can distract employers and employees from the actual task of producing goods and services and instead, devote their attention to these immigration matters. This is more so for employers in those fields Americans don’t normally work in, e.g., farmers, landscapers, hospitality, etc.

The following are the key points employers of immigrants should keep in mind to avoid getting into problems with the government agencies, like Tsyon Foods:

• Employers should not knowingly employ people who are not authorized to work in the United States. This was one of the charges in the Tyson case. Knowingly employing individuals not authorized to work in the United States attract both civil and criminal penalties.
• If management knows that the employee is working illegally or that the presented documents are fraudulent, then management has the obligation not to employ the individual. In the Tyson Food case, the government alleged that management knew that the employees were illegal and that management participated in the scheme to bring illegal aliens to work for them.
• Employers should comply with the formal requirements about proper record of employees. The employers are required to comply in good faith. This means that the employer should act in good faith when evaluating the documents presented by the prospective employee for I-9 purposes. The employer is not necessary supposed to be a forensic expert on validity of the documents.
• Employers have been getting increasing number of “ no-match” letters from the Social Security Administration (SSA) for particular employees. The usual reasons for the letter are either that the Social Security Number (SSN) is invalid or that the name and SSN of employee does not match their records. Usually, those alone are not enough reason to terminate the employee, nor does that mean the employee has committed fraud in I- 9. In fact, terminating on based on the “no-match” alone could invite lawsuits from the employee to sue for discrimination.
• Recently, the IRS announced that it would start imposing penalties for inaccurate name and SSN data reported on Form W-2 filings. The penalty is up to $50 for each W-2 from with incorrect information. This penalty, however, cannot be passed on to the employee.

Employers are now getting sanctions either for hiring undocumented workers or for failure to document workers. In these cases, it is important to consult a lawyer that deals with this type of issue before conceding the charges. Once conceded, it may have impact in the future if the employers run with any problem with immigration.

This article does not constitute legal advice and should not in any way substitute for legal consultation with an attorney. Individual circumstances vary. This article does not establish attorney-client relationship with the reader and the author. Consult a lawyer.

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