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POULTRY PLANT RAIDS: THE REST OF THE STORY

On August 7, 2019, seven food processing plants in Mississippi were the subject of "raids" conducted by Immigration and Customs Enforcement (ICE).  The Secretary of the U.S. Department of Homeland Security said the raids had been planned for approximately a year.

How were these facilities selected?  Affidavits submitted by ICE in support of the warrant applications stated that, for years, temporarily detained undocumented workers - from as far as El Paso, Texas, and Yuma, Arizona -had employment cards from plants in Mississippi.  The presence of former detainees was supported by electronic ankle monitor readings, surveillance, and confidential informants.

The affidavits also revealed new approaches used by ICE on one or two of the companies that were particularly interesting in addition to the above.  At one of the plants, ICE checked the license plates in the parking lot and determined the owners of the vehicles.  ICE then compared the owners of the vehicles to the employees' names at the plant as determined by tax forms filed with the state.  They found very few employees at the plant that corresponded to the names of the owners of the vehicles, a factor ICE considers to indicate a lot of illegals.  Apparently, illegals tend to register their cars in their true names, but use fictitious names to seek employment.  In another approach, at one of the two plants ICE found that the company had selectively utilized E-Verify, apparently E-Verifying only those that were expected to pass the E-Verify system.  A further technique was not only to use audio, but also video recordings on informants, sometimes coming in and admitting to an HR hiring person that they would not pass the verification system, only to return a week or so later and talk to the same HR person utilizing a different fictitious name.  ICE agents analyzed employee rolls at a poultry company in Carthage, Mississippi, and found that numerous workers were using stolen identities, Social Security cards that didn't match their names, or numbers that reportedly belonged to dead people.

The critical question will be whether the employers knew that the individuals they were hiring were not authorized to work in the U.S.  Most large employers use the Federal government's E-Verify system, which is supposed to identify a worker's status.  But E-Verify is not 100% accurate.  The I-9 form that all employers must use to verify worker eligibility requires an employer to accept documentation offered by the employee and prohibits most further inquiry.  Poultry processors have been sued by the Federal government for seeking to verify documentation in some situations.  Good forgeries and false identities also can subvert the system. 

Many employers erroneously believe that using the government's E-Verify system protects them from fines.  That's not necessarily so, but it does raise the bar considerably for the prosecutor to show that the employer knowingly hired an unauthorized worker.  Another shortcoming of E-Verify is that it only works on new hires:  you can't go back and check the credentials of existing workers.

Why poultry processors, and why now?  There seems to be multiple factors at work within ICE.  First, ICE seems intent on tough enforcement and increasing deportation of illegal immigrants.  So far, the number of deportations during the Trump Administration lags far behind the numbers racked up during the Obama Administration.  On the other hand, many ICE officials across the country have been reassigned to duties along the Mexican border, making it more difficult for ICE to gather the personnel to conduct raids.  The demands on their workforce notwithstanding, ICE plainly made these unprecedented raids a priority.  Given the resources and preparation brought to bear on these raids, ICE may lack the resources to conduct many large raids in the near future.  Although he declined to speculate as to future plans, an ICE spokesperson did say they had no current plans to conduct similar raids in Georgia, which is the largest chicken processing state in the U.S.  However, the raids also indicate that ICE is ready to take on large scale operations and target specific industries and geographic areas. 

How does ICE select its targets?  An enforcement action usually begins with an ICE desk audit.  Sometimes an informant complains to ICE, or ICE may send in undercover agents to check out accusations.  At other times an illegal "ring" of fraudulent document providers is discovered primarily directing their activities toward a given facility or area.  Affidavits submitted in support of the Mississippi search warrants cited complaints, but also ankle monitor evidence showing that individuals previously detained and released, and lacking work authorization, had spent long hours at the plants. 

Recommendations:  There is no way to guarantee that your business will be beyond the reach of ICE, but there are steps you can take to minimize the risk:

  • Use E-Verify. It's not a guarantee, but it is certainly a step in the right direction.
  • Audit yourself. A periodic review of I-9s may bring anomalies to your attention before they come to ICE's attention. You can conduct an audit yourself or use outside help.  If you have legal counsel conduct your internal audit, the results are subject to the attorney-client privilege and you cannot be forced to disclose them.
  • Use what you learn. If the audit reveals a potential problem, contact the affected employee and give them an opportunity to make a correction.
  • Develop protocols to follow if an audit or raid occurs.
  • Issue a memo to all supervisors and managers informing them of the requirements of the immigration laws, directing them to report any knowledge of illegal status on the part of any worker to a designated management official.
  • When you receive evidence or reports of illegal status on the part of any worker, promptly conduct an internal investigation and keep an "immigration investigations log" of each incident and the conclusions.
  • Set up and follow a protocol upon receipt of a "Social Security mismatch" communication.
  • Confer with an attorney knowledgeable about the immigration laws upon receipt of an ICE I-9 audit letter, including how to respond to the audit, and how to respond to the results of the audit communicated by ICE.

If you are the subject of a raid:

  • Be polite to law enforcement officials but know your rights.
  • Call your lawyer.
  • Cooperate, but do not volunteer information. You will be awarded no points for being "nice."
  • Carefully review any warrant to understand its scope. The warrant should have a detailed description of when and where agents are going to search and what they may seize. You may need to limit your consent to their search depending on the terms of the warrant.  You do not have to let them search beyond the scope of the warrant. 
  • You do not have to answer ICE questions during a raid. Make a note of the questions and submit the answers later.

Seek advice of counsel as to whether you should consent to ICE agents speaking to your employees on the premises.  ICE can interview hourly employees privately, but a management representative (or counsel) may be present if they want to interview a manager.

NLRB PROPOSES THREE NEW RULES TO PROTECT EMPLOYEE AND MANAGEMENT RIGHTS

The NLRB has been the most activist of the federal agencies in promoting deregulatory actions that benefit employee and management rights.  A part of the effort has been an attempt to undo the 92 precedents overturned by the Obama-Era NLRB.  But the Republican-majority NLRB is also aggressively pursuing tactics that make it more difficult for a future administration to overturn various reforms.  One of the avenues of such an approach is proposing changes through rule-making, as federal regulations are harder to undo in the future than an NLRB ruling which can be reversed by a future Board. 

On August 12, 2019, in a Notice of Proposed Rule-Making, NLRB is formally proposing three new rules:

1.         Blocking Charge Policy.  Currently, if a union has filed a petition for an election, but decides that the election is not likely to result in a union victory, it may file a so-called "blocking charge."  Under current NLRB policy, if an unfair labor practice charge is pending that might have merit, and is filed in the period before an NLRB election, the election is postponed under the "blocking charge" policy.  The same concept applies to a decertification election that attempts to vote an incumbent union out, and through such blocking charges the union can indefinitely postpone such a decertification election.

            Under the proposed new rule, elections would no longer be blocked by pending unfair labor practice charges, but the ballots would be impounded until the charges are resolved.  This measure would definitely improve employee and employer rights, and the Labor Act is supposed to protect such a right of free choice on the question of unionization. 

2.         Voluntary Recognition Bar.  In today's environment, unions often forego the NLRB election procedures to gain union recognition, and to gain the ability to start collecting union dues.  Instead, unions often try to attempt to get employers to agree to "voluntary" union recognition through a card-check procedure.  Under these procedures, if a union can get authorization cards signed by a majority of eligible employees, it is legal for the employer to recognize the union without a secret ballot NLRB election.  Some unions go to great lengths to coerce employers into agreeing to such measures, through pressure on the employer directly or through petitions to government bodies.  When an employer and union agree to such a measure, it is the employees that come up short due to a lack of free choice in a secret ballot election.                      

            Under the proposed new NLRB rule, employees would be notified when their employer has granted "voluntary recognition" to a union under Section 9(a).  Under current NLRB case law, employees have no right to decertify the union voluntarily recognized until a reasonable period of time has elapsed for the negotiation of a union collective bargaining agreement.  Under the proposed new rule, employees must not only receive notice of the recognition, but also be given a 45-day open period in which to file an election petition with the NLRB for a secret ballot election. 

3.         Section 9(a) Recognition in the Construction Industry.  There is a special rule in the construction industry known as the Construction Industry Proviso, which allows employers and union employers to "voluntarily" recognize unions without an election or even a card-check under Section 8(f).  This provision is unique to construction because of some special history there.  However, an election petition for decertification can be filed at any time under such a Section 8(f) relationship.  The unions often attempt to convert Section 8(f) relationships to Section 9(a) relationships, which can bar secret ballot election petitions by the NLRB during the term of a collective bargaining agreement.  But unions quickly found a way to get around the Section 8(f) requirements, by putting in tricky contract language converting a relationship to a Section 9(a) relationship.  Under the new proposed NLRB rule, to convert a Section 8(f) relationship into a Section 9(a) relationship, there would actually have to be positive evidence of majority employee support for union representation rather than tricky union contract language alone.

Another area the NLRB hopes to address in the near future concerns revisions to the NLRB's quickie election rule.

LABOR DEPARTMENT TO PUSH AHEAD ON NEW RULES BEFORE DEADLINES

The Department of Labor (DOL) is struggling to finalize various proposed regulations at a faster pace due to two converging factors.  First, under the 1996 Congressional Review Act (CRA), rules finalized in the last year of an administration can be repealed if they have not gone into effect yet, and stayed in court while their validity is being challenged.  Under the CRA, any rule finalized in the last 60 legislative days of the congressional session can be vetoed within the first 60 days of the new Congress if a resolution is passed by both chambers and the President signs it into law.  Second, after the resignation of Alexander Acosta as Secretary of Labor, the new Acting Secretary, Patrick Pizzella, is known to be much more aggressive pursuing deregulation and pro-business initiatives.  Eugene Scalia has been nominated by President Trump as the new Secretary of Labor, but he is not expected to be confirmed until the fall.  Scalia is known to share Pizzella's enthusiasm for pursing pro-business regulatory reform, and Scalia and Pizzella have worked together in past administrations to do just that.

It may surprise readers to know that it takes 1-5 years to finalize a significant new federal rule.  The relevant agency must develop various documents supporting the new rule, allow for public comment, and particularly to follow closely the steps in the Administrative Procedure Act and other requirements of agency rule-making.  If the regulatory requirements are not met, a federal court can invalidate the federal rule and so careful planning is necessary.

Some 15 Obama-Era rules were invalidated using the CRA, and the same thing has happened to some of the current administration's regulatory proposals.

Publication of new proposed salary tests for the white-collar exemption is expected to be released any time now, and the DOL is pushing ahead on the joint employer rule and clarification of the "regular rate" for overtime purposes.  Another rule likely to move ahead in the near future is the "fluctuating work week" proposal, a rule giving employers the option to pay certain workers whose hours vary each week at half their regular rates, instead of time and a half for hours worked over 40.  While this rule currently exists, it is not always available to employers that compensate their employees with bonuses or other incentive-based pay. 


Wimberly, Lawson, Steckel, Schneider & Stine

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