In an unusual twist that appears to be increasingly prevalent today, immigration enforcement officers and the president are being vilified by members of Congress and the press for enforcing the laws that Congress itself has written. Usually lost in those attacks are the aliens who themselves are being victimized by the non-enforcement of those laws, and the American workers who face a similar fate.
I am reminded of this because of a debate/conversation in which I engaged on Fox News on February 22, on “The Ingraham Angle”. At issue was a U.S. Immigration and Customs Enforcement (ICE) investigation at a meatpacking plant in Tennessee on April 5, 2018. As local news channel WJHL described it, that so-called “raid” was carried out by agents from the Internal Revenue Service (IRS), ICE, and the Tennessee Highway Patrol:
During the raid, 97 people were found who were subject to removal from the United States. Ten of those were arrested on federal criminal charges, one on state charges and 86 on administrative charges. Of the 86 administrative arrests, 54 were placed in detention and 32 were released from custody.
Such “surveys” used to be commonplace when I was employer sanctions counsel for the former Immigration and Naturalization Service (INS) in San Francisco and Baltimore in the late 1990s. They were largely abandoned by the Obama administration.
On February 21, 2019, as NBC News reported, however: “Two advocacy groups and a law firm filed a lawsuit against immigration officers, accusing them of unlawful searches and arrests, racial profiling and excessive force.” That report continues:
The suit was filed in federal court in Knoxville by the National Immigration Law Center, the Southern Poverty Law Center, and the law firm of Sherrard, Roe, Voigt and Harbison on behalf of seven named workers and about 100 unnamed ones who were detained during the raid. The suit, which names nine federal officials and includes 30 unnamed ICE agents, claims the workers’ rights were violated and seeks monetary and punitive damages.
Meredith Stewart, a senior supervising attorney at the Southern Poverty Law Center, said what happened during the raid was illegal.
“ICE agents stormed the meatpacking plant looking for Latino workers without knowing their identities or immigration status,” she said. “They detained those workers solely on the basis of their race, using intrusive, militaristic and even violent measures. This is law enforcement overreach, plain and simple.”
I was not there, so I cannot attest to the veracity of these claims. It would, however, be inconsistent with my knowledge of how ICE agents conduct their business, and I have more knowledge than most: In addition to having been an employer sanctions counsel at the former INS, I was also oversight counsel for immigration for the House Judiciary Committee from 2001 to 2006, and staff director of the National Security Subcommittee at House Oversight and Government Reform (with jurisdiction over, among other agencies, ICE) from 2015 to 2016. Again, however, abuses happen, so it will be up to the court to determine what actually happened.
I would note, however, as Justice Sandra Day O’Connor held in INS v. Lopez-Mendoza (a case involving the application of the Fourth Amendment exclusionary rule in connection with a similar raid at a potato processing plant in Pasco, Wash.) more than 34 years ago:
INS has its own comprehensive scheme for deterring Fourth Amendment violations by its officers. Most arrests of illegal aliens away from the border occur during farm, factory, or other workplace surveys. Large numbers of illegal aliens are often arrested at one time, and conditions are understandably chaotic. … To safeguard the rights of those who are lawfully present at inspected workplaces the INS has developed rules restricting stop, interrogation, and arrest practices. … These regulations require that no one be detained without reasonable suspicion of illegal alienage, and that no one be arrested unless there is an admission of illegal alienage or other strong evidence thereof. New immigration officers receive instruction and examination in Fourth Amendment law, and others receive periodic refresher courses in law. … Evidence seized through intentionally unlawful conduct is excluded by Department of Justice policy from the proceeding for which it was obtained. … The INS also has in place a procedure for investigating and punishing immigration officers who commit Fourth Amendment violations. … The INS’s attention to Fourth Amendment interests cannot guarantee that constitutional violations will not occur, but it does reduce the likely deterrent value of the exclusionary rule. Deterrence must be measured at the margin.
It is not my understanding that ICE has relaxed its rules regarding its agents’ actions in worksite enforcement in the intervening three decades-plus.
That really is just an aside, however, to my main point. In addition to the aliens who were arrested that day, additional violations were identified at the Tennessee plant, as a press release from the National Immigration Law Center (NILC) reveals:
The Tennessee Occupational Safety and Health Administration (TOSHA) has slammed the Southeastern Provision meatpacking plant in Bean Station, Tennessee, with $41,775 in fines and cited the company for 27 violations, 23 of which were categorized as “serious” because of the risk of physical harm or death posed to workers. These violations and investigations came to light after a raid of the plant in April, during which U.S. Immigration and Customs Enforcement (ICE) agents used aggressive, militaristic force to arrest nearly a hundred workers, including at least one U.S. citizen and others with work authorization.
The fine is among the highest levied by TOSHA and indicates the seriousness of the violations found by the state agency and the dangers facing the workers in the plant. The TOSHA investigation found that the company failed to provide even the most basic safety equipment and sanitary facilities, creating an extremely hazardous work environment for plant employees. Employees faced a wide range of injuries due to dangerous levels of noise, exposure to chemicals, faulty equipment, and poor sanitation.
Respectfully, the significance of those health and safety violations is underscored by the obvious pro-immigrant slant of this release. Meat+Poultry expanded on the violations that were identified by TOSHA:
The Tennessee Occupational Safety and Health Administration (TOSHA) found a total of 27 violations, 23 of which were categorized as serious. For example, TOSHA cited the meatpacker for failing to provide workers with protective equipment “…when employees completed tasks including, but not limited to, using a torch to remove hooves from cows.” The company also was cited for failing to provide protective equipment to employees who used knives to trim or process meat.
Other violations included failing to provide adequate facilities for quick flushing of the eyes and body when workers potentially were exposed to corrosive materials; failing to ensure proper hazardous chemical training for employees and failing to provide women’s lavatories.
I could not find a final disposition of those allegations, and everyone is entitled to a presumption of innocence in this country, but the allegations, if true, are pretty serious.
Health and safety and immigration laws were not the only violations in question at this establishment, however. As the U.S. Attorney’s Office for the Eastern District of Tennessee stated in a September 12, 2018, press release:
On September 12, 2018, James Brantley, 61, of Bean Station, Tennessee, pleaded guilty before the Honorable J. Ronnie Greer, U.S. District Judge, to tax fraud, wire fraud, and employment of unauthorized illegal aliens. Brantley is the owner of Southeastern Provision, LLC (Southeastern Provision), a slaughterhouse and meatpacking plant located in Bean Station, Tennessee.
Brantley faces up to five years in prison, a $250,000 fine, and three years of supervised release for the tax counts. He faces a maximum of 20 years in prison, a $250,000 fine, and three years of supervised release on the wire fraud charge. Finally, he faces up to six months in prison and a fine of not more than $3,000 per unauthorized alien on the employment of unauthorized alien charge. Brantley also agreed to pay restitution to the United States government in the total amount of $1,423,588 on or before the date of his sentencing. Sentencing has been set for 1:30 p.m., February 4, 2019, in U.S. District Court.
That press release continues:
In April 2018, a federal search warrant was executed at Southeastern Provision, during which agents discovered at least 104 unauthorized aliens employed there. Evidence showed that Brantley had previously reported to the Internal Revenue Service (IRS) that he had only 44 wage-earning employees. Further investigation revealed that he paid the unauthorized aliens in cash at a rate of $8-$10 per hour. The employees were also often asked to work overtime at their standard rate of pay, rather than the “time and a half” required by the Fair Labor Standards Act for overtime work.
So, this one plant had immigration violations, tax law violations, and potential health and safety violations. One generally follows the other, however.
The immigration laws in the United States exist for several reasons, including the exclusion and removal of criminal aliens, and aliens who pose a threat to the national security. One of the fundamental purposes of the immigration laws, however, is to protect the wages and working conditions of all Americans, both U.S. citizens and aliens lawfully present.
It would not be surprising to find that an employer who would egregiously skirt the immigration laws of the United States would also ignore basic health and safety rules in the workplace. In fact, it would make perfect sense for such an employer to do so. An employer could always hold the threat of firing without recourse and the potential of removal over the head of an undocumented worker, a scenario that would not be possible (or in any event would be much more difficult) if the worker were a U.S. citizen or a lawful permanent resident. A friend of mine who is also a lawyer works for firm that has a major unpaid overtime/employment practice, as well as a strong tort presence, and that firm is far from the only one, as a web search for these terms reveals.
On the tort point, the NILC press release quotes “Jessie Hahn, labor and employment policy attorney, National Immigration Law Center (NILC)”, who states:
These citations confirm what we have known to be true through the firsthand accounts of several former employees. Mr. Brantley is intentionally and blatantly defying required workplace health and safety standards — and putting his employees in grave danger — in order to save himself money. Despite many employees suffering injuries and some having to seek treatment at the hospital, he did not keep any of the required records of injuries, he encouraged his employees to deny their injuries were work-related to hospital staff, and to date he has not taken any action to improve safety conditions. These citations are an important step, but much more must be done to ensure the safety and wellbeing of all Southeastern Provision employees now and in the future.
Injuries incurred as a result of unsafe working conditions, particularly where there is a cover-up, are potentially actionable in tort, exposing the employer to significant liability, and offering the worker significant monetary damages relief. I like to think of the law as a noble profession, but I know that there are any number of so-called “ambulance-chasers” who would salivate at the thought of taking such a case. For what it’s worth, there are many upstanding and reputable attorneys who would do the same.
Separating out the immigration violations from the health and safety violations in any number of businesses in the United States is a fool’s errand. Non-enforcement of the immigration laws has essentially created a vulnerable population of workers who are ripe for exploitation by unscrupulous employers.
As importantly, it deprives American workers of the opportunity to take good-paying jobs in safe conditions. When an industry has a willing pool of exploitable workers, there’s strong incentive for employers to skirt the laws: immigration, tax, and health and safety, just to name a few. The industry standard for wages and safety falls, and the American worker is faced with two choices: Take the dangerous low paying job, or attempt to find one in another industry.
If there were abuses by ICE agents, I will be the first to call for investigation and punishment of those agents, for a very basic reason: The work that they do undergirds the enforcement of all the other laws that ensure that American workers can labor in safe conditions at a legal and fair wage. ICE must be able to continue to enforce the immigration laws to avoid abuses of those other laws.
The idea, however, that the United States should turn a blind eye to immigration enforcement, and thus create a vulnerable population of willing workers, and yet still expect employers to comply with all other labor and wage and hour laws is foolish. And yet, there are many, including many in power, who want to Abolish ICE and its critical functions.
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