Greg Naylor, Editor
Whitfield & Eddy, P.L.C.

Vol. 15, No. 2
June 2008

IMMIGRATION

Postville immigration raid spurs host of legal claims

. . . Suspected immigration abuses lead to the issuance of more than 697 arrest warrants . . .

The Immigration Reform and Control Act requires that all persons working in the United States provide valid identity and employment authorization documents before they are permitted to work. Persons who misrepresent their identity or work eligibility violate federal law and are subject to criminal prosecution, including deportation. Read on to learn how suspected federal immigration violations recently shut down the operation of a profitable kosher meat-processing facility in Postville.

Largest immigration raid of the year hits Iowa town

After setting up a perimeter around the 60-acre kosher meatpacking plant in eastern Iowa, federal agents arrested more than 300 of the plant's approximate 900 employees for alleged immigration violations. Working with state and local officials, the feds carried out two search warrants signed by a federal judge after an affidavit filed by the U.S. Department of Homeland Security led to the issuance of almost 700 criminal complaints and arrest warrants for persons working at the Agriprocessors plant.

According to one affidavit filed by a former plant supervisor, criminal activities were purportedly occurring at or near the plant, including the manufacture of methamphetamine and employees possessing loaded weapons. The former supervisor estimated in his affidavit that as much as 80 percent of the employees working at the plant were in the United States illegally.

In conducting the raids, federal officials made efforts to avoid civil rights abuses of the type that generated adverse publicity when 90 employees at a Swift & Company facility in Marshalltown were arrested last year. The Swift raid was criticized for allegedly violating workers' Fourth Amendment rights against unreasonable searches and seizures. Federal agents were also criticized at the time for separating families after arresting parents working at the facility.

In addition to the Postville raid conducted by state and federal officials, the United Food and Commercial Workers Union has been attempting to organize employees at the facility. The union alleges that Agriprocessors has been exploiting underage workers and paying them off the books. Officials from the Iowa Division of Labor Services also served an extensive subpoena on Postville school officials, seeking school records to determine whether the facility was violating child labor laws in allowing underage children to work at the plant. Others have claimed that Agriprocessors was in breach of several other wage and hour laws, including paying workers less than minimum wage and requiring them to work hours that were never recorded on wage and hour work records.

The raid at the facility occurred after it was alleged that several employees fraudulently misrepresented their work status credentials by submitting false social security numbers and producing false or misleading employment verification documents. Employers must examine and verify information submitted with the I-9 form for compliance with federal statutes requiring identity and work authorization verification.

According to those familiar with the authorities' investigation before the raid, the vast majority of workers at the Postville plant purportedly submitted false social security numbers and other fraudulent temporary or permanent resident alien cards to obtain work at the meatpacking facility. Allegations have also circulated that the company failed to properly withhold employment taxes and that some workers were even subjected to physical abuse that went unreported because they were fearful that their illegal identities would be reported to federal authorities. The Postville raid is the largest immigration raid to have ever occurred in Iowa, and the legal ramifications of the crackdown by federal authorities will be felt for some time.

Employment tip

So what can we learn from the dramatic Postville raid?

Take the I-9 process seriously. The I-9 regulations and forms were imposed in 1986. Responding to alleged security concerns prompted by an influx of illegal immigrants, members of Congress asked the Immigration and Naturalization Service to create a security-check system to identify illegal aliens who have not attained legal status before coming to work in the United States.

The Postville raid serves as a sobering reminder that Iowa employers must strictly follow the I-9 verification process. Immigration authorities can gain access to your I-9 records to verify your organization's statutory compliance. Take your I-9 checks seriously. Carefully evaluate documents presented, complete all written forms accurately, and preserve your I-9 records as required by law. Judging by the national debate on immigration, raids of the Postville variety may become much more prevalent in future months. You must be sure your I-9 files are complete or face the potential consequences of civil and even criminal charges.

Remain vigilant for possible identity abuse. It's no secret that certain industries are much more likely to be the target of immigration raids in the future. If you own a business in the construction, meatpacking, or agricultural industry, be aware that you could be a target for an immigration audit.

Take the time to properly check work and identification documents. Train your supervisors and hiring personnel to be vigilant in following through on the employment verification process. In the event that you receive credible information that an illegal immigrant is working for your business, be sure that you follow up. Require any person reasonably suspected to be an illegal alien to reverify his I-9 documentation or clear up any social security no-match notice. Remember, reverification must take place if reasonable suspicions have been raised concerning a worker's legality ― even if he has worked for you for years.

Double-check the legality of all your employment records. The raid on Agriprocessors also reminds us of the importance of keeping accurate employment records. The packing facility at Postville is now also purportedly the target of child labor violations, criminal charges, wage and hour complaints, federal tax noncompliance, and a host of other civil and criminal problems. Conduct a self- audit of your employment records and your recordkeeping process to ensure that your business is creating and retaining the appropriate records required under state and federal law.

Ask yourself this question: If government authorities sought access to all of my company's employment records tomorrow, would the documents measure up to legal requirements? Remember, the pain you incur today bringing your records into compliance will be pain saved tomorrow, including potential lawsuits, fines, and even criminal charges that follow certain types of violations.

To date, the Postville raid has produced a ton of allegations and very few actual verified violations. Still, the raid virtually shut down a thriving and prosperous business, at least temporarily, and proof of the alleged civil and criminal violations could be devastating for the business. Don't allow your operation to be the target of a similarly disruptive federal or state investigation.

Copyright 2008 M. Lee Smith Publishers LLC

IOWA EMPLOYMENT LAW LETTER does not attempt to offer solutions to individual legal problems nor does it provide legal advice. The newsletter provides general information on current developments on Iowa employment issues. Questions about individual legal problems should be addressed to the attorney of your choice.