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Hiring Illegal Workers Is Risky Business

The most inexpensive labor force can be the costliest for an employer if it involves illegal workers, underage workers or child laborers used in hazardous activities.It is illegal and morally wrong to hire these employees. Plus, heavy penalties are imposed on employers violating the labor laws.Regarding each prospective employee, a producer must ask the question: "Is it legal for me to hire this worker?"

The most inexpensive labor force can be the costliest for an employer if it involves illegal workers, underage workers or child laborers used in hazardous activities.

It is illegal and morally wrong to hire these employees. Plus, heavy penalties are imposed on employers violating the labor laws.

Regarding each prospective employee, a producer must ask the question: "Is it legal for me to hire this worker?" If the answer is no, it is risky business for the producer who goes ahead with the hiring. Here's why.

Illegal Immigrants Illegal immigration concerns have resulted in lively congressional debates over solutions to the problem and demands for increased enforcement measures to identify and deport illegal immigrants. Enforcement measures focus more on employers, since most illegal immigrants are drawn to the U.S. for jobs and some employers have taken advantage of unauthorized workers as a cheap labor supply.

The number of illegal, unauthorized immigrant workers in the farm labor supply is hotly debated. Estimates range from 25% to over 50%. Regardless of the estimate used, the number is substantial.

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Although many people associate unauthorized immigrant workers with the harvesting of perishable field crops, illegal workers can be found throughout agriculture, including pork, beef and poultry production.

The Immigration and Naturalization Act, as amended by the Immigration Reform and Control Act (IRCA) of 1986, controls the entry of immigrants into the U.S. The IRCA governs the employment of aliens not lawfully admitted to the country. The IRCA also applies to all employers, regardless of the size of their business.

The 1986 amendment was enacted to stem the tide of illegal immigrant workers to the U.S., especially from Mexico. Instead, it increased the problem.

The IRCA, as amended in 1986, gave legal status to one million Mexicans, but did not do the same for their wives and children. The men, however,illegally brought their wives and children into the country, which was to be exp ected and increased the pool of illegal immigrant workers.

In addition, other immigrant workers continued to come into the U.S., resulting in an ever-expanding, illegal, labor pool.

The IRCA does not exempt agricultural employers. It also applies to agricultural associations and farm labor contractors who hire, recruit or refer individuals to work for a fee.

A farmer violates the IRCA if he/she knowingly hires an unauthorized alien or continues to employ an unauthorized alien after learning of the worker's illegal status.

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Pork producers must verify a laborer's employment eligibility. Immigration and Naturalization Service (INS) Form I-9 is used for this documentation. The producer/employer must complete this form within three business days of when an employee begins working. If the employment lasts less than three days, the form must be filed by the end of the first working day.

Verification is valid for three years, even if employment is not continuous. The producer is required to update INS Form I-9 upon the expiration of any employment eligibility document in order to verify that an employee is still authorized to work in the U.S.

There are many ways to determine an individual's qualification to work in the U.S. They include examining an individual's current U.S. passport certificate of U.S. citizenship, a certificate of naturalization, an unexpired foreign passport, an unexpired attorney general's endorsement for work in the U.S. or an unexpired Form I-94 authorizing employment, a resident alien card (INS Form I-551) or registration card (INS Form I-151) with a photograph and unemployment authorization, a temporary resident card (INS Form I-688), or an employment authorization card (INS Form I-688A).

A birth certificate or social security card can prove employment eligibility. But additional proof, such as a driver's license or other state identification with a photo, must be provided to establish that the document belongs to the person. Employers have the duty to inspect employment authorization documents and ensuring the documents appear to be genuine.

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Penalties Producers employing aliens not lawfully admitted to the U.S. are subject to substantial monetary fines and possible imprisonment. For a first offense, an employer is subject to a civil penalty not less than $250 and not more than $2,000 for each unauthorized alien. A second offense carries a civil penalty of not less than $2,000 and not more than $5,000 for each unauthorized alien.

After the second offense, the employer is subject to a civil penalty of not less than $3,000 and not more than $10,000 for each illegally employed worker. Multiple offenses also subject an employer to criminal penalties. An employer who engages in a pattern or practice of violating the law is subject to a criminal fine of not more than $3,000 for each unauthorized alien with respect to whom a violation occurs and/or imprisonment for not more than six months.

The IRCA provides employers with a good faith defense. An employer who proves that she/he made a good faith effort to comply with the IRCA establishes an affirmative defense that they did not violate the act.

Recordkeeping is an important IRCA requirement. Employers must keep an individual's I-9 Form for three years after hiring an individual, or one year after the date the individual's employment is terminated, whichever is later.

Failure to keep proper records subjects an employer to a civil penalty of not less than $100 and not more than $1,000 for each individual with whom a violation occurred. Before the penalty is determined, consideration is given to the size of the employer's business, the employer's good faith, the seriousness of the violation, whether or not the individual was an unauthorized alien, and the employer's history of prior violations.

In one case, an employer was fined $13,500 for failing to correct 135 recordkeeping violations following a routine inspection in which 183 violations were found. The employer's failure to correct all of the initial mistakes was discovered during a second inspection, therefore constituting a second violation for which new penalties were assessed.

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The federal government has a pilot program that allows industries attracting undocumented immigrant workers to access a database constructed for INS records. The pilot program consisted of 234 companies, including Disneyland, in two southern California cities. These companies checked the immigration status of over 11,000 job applicants. About 25% turned out to be illegal workers.

The Clinton administration recently expanded the program to the meat-packing industry, which now attracts large numbers of illegal workers. A similar program was recently instituted in Iowa.

Beware Of Discrimination A pork producer cannot avoid the verification requirements of the IRCA by refusing to hire persons whom they suspect is an unauthorized alien. Under the IRCA, it is an unfair immigration-related employment practice to discriminate against any individual (other than an unauthorized alien) when hiring or discharging an individual because of their national origin.

The IRCA provides for special counsel to investigate complaints of an employer engaging in unfair immigration-related employment practices. An employer's first offense results in a civil fine of $1,000 for each individual discriminated against. An employer is fined $2,000 per individual if previously found to be in violation of the act.

Violators are also subject to back pay (up to two years) and an award of reasonable attorney's fees to the prevailing party (unless the prevailing party is the U.S.).

To avoid having to document the legality of their immigrant workers, some agricultural employers have turned to farm labor contractors (FLC). The FLC checks and verifies workers' documents, fills out government-required paperwork, and releases employers from any liability. FLCs are used extensively by vegetable growers and now by livestock producers and processors.

In the past, the use of FLCs effectively shielded employers from IRCA claims. Recently, however, some courts have found FLCs and employers using them to be joint-employers of laborers and have held both parties liable for IRCA violations.

More Ag Scrutiny Agricultural operations are receiving increased scrutiny from the INS. Surprise inspections conducted at agricultural facilities have been conducted throughout the U.S.

A 1996 INS inspection at an Ohio agribusiness' egg farm resulted in the deportation of 20 workers to Mexico and charges of IRCA violations against the business. Charges included health and safety violations in improperly operated migrant camps.

Large agribusinesses have been fined hundreds of thousands of dollars for IRCA violations. Even small employers have been fined tens of thousands of dollars.

The IRCA's provisions on unfair immigrations-related employment practices exempts employers with three or fewer employees from its provisions.

All employers, however, have to be concerned about Title VII of the Civil Rights Act of 1964 whose provisions overlap those of the IRCA. If a charge has been filed with the Equal Employment Opportunity Commission (EEOC) on the same set of facts subject to the IRCA, then the complainant proceeds under Title VII. The converse is also true. The EEOC will not accept a complaint under Title VII, if the complainant has already proceeded under the IRCA.

Oppressive Child Labor The Federal Fair Labor Standards Act (FLSA) prohibits the employment of "oppressive child labor" in commerce or in the production of goods for interstate or foreign commerce. The FLSA defines "oppressive child labor" as the employment of an employee under 16 years of age by an employer in any occupation other than in agriculture. The act sets a 16-year-age minimum for employment in agriculture during school hours and for employment in agriculture declared to be particularly hazardous by the Secretary of Labor. An exception is made when the person is employed by a parent or a person standing in the place of his parent on a farm owned or operated by the parent or person.

The minimum age for agricultural employment outside school hours is 14 years. At age 12-13 years, a child may be employed outside of school hours, if they have written permission from a parent or legal guardian. Minors under the age of 12 may be employed outside of school hours by a parent, or a person standing in place of the parent, on a farm owned by the parent or the other person.

The FLSA sets an 18-year minimum age for employment in an occupation considered particularly hazardous or detrimental to minors. Again, this determination is made by the Secretary of Labor. The list of agricultural occupations is extensive. Activities common to swine production include:

* Working on a farm in a yard, pen, or stall occupied by a boar kept for breeding or a sow with suckling pigs.

* Working inside a manure pit.

* Operating a tractor of over 20 hp with a PTO or connecting or disconnecting an implement from such a tractor.

* Operating or assisting to operate a corn picker, feed grinder, crop dryer, auger conveyor, or the unloading mechanism of a nongravity-type, self-unloading wagon or trailer or forklift.

* Working inside grain storage designed to retain an oxygen-deficient or toxic atmosphere, or an upright silo within two weeks after silage has been added or when a top loading device is in operating position, or a horizontal silo while driving a tractor for packing.

* Transporting, transferring or applying anhydrous ammonia.

Violation of the FLSA carries a penalty up to $10,000 for each violation. A violator is also subject to state law penalties. States have their own fair labor standards and prohibitions against oppressive child labor.

In addition to federal and state statutory penalties, employers who violate fair labor standards by employing underage workers also face other legal pitfalls. In some states, an employer's violation of child labor laws imposes absolute liability on the employer if a minor is injured at work. This means that the employer cannot raise causation or the minor's contributory negligence as a defense to any cause of action for bodily injury filed on one minor's behalf against the employer.

For example, if an illegally employed minor is injured in a producer's manure pit, the producer cannot raise the minor's negligence as a defense, even if the minor entered the pit in violation of the producer's safety instructions. To find the producer liable, the plaintiff need only prove the extent of the child's damages.

Liability Insurance Employers who violate child labor laws face increased exposure to liability claims filed on behalf of injured minors and do so without liability insurance coverage. Liability insurance policies exclude coverage for accidents involving minors employed in violation of child labor law provisions.

A worker seriously injured or killed while working in or near a producer's manure pit, exposes the producer to hundreds of thousands of dollars in damages. If the injured worker is an adult, the producer's liability insurance carrier is obligated to provide the producer with a defense attorney, pay all defense costs, and pay any judgment against the producer within the policy's financial limits.

But, if the injured worker is a minor, the producer must pay all defense costs, including attorney's fees, and bear the full financial burden of any adverse judgment.

Even those employers who have taken advantage of state workers' compensation laws face additional penalties if an illegally hired minor is injured. In some states, a miner's compensation is automatically doubled as a penalty to the employer. In other states, the minor may sue the employer outside of workers' compensation.

Although most producers follow the laws protecting their employees' safety and civil rights, they may still be exposed to legal liability for hiring illegal workers.

Undocumented immigrant workers are often dedicated workers, and relatively inexpensive to employ, but their use is legally indefensible.

Children under the age of 18 years can be effective and enthusiastic workers, but their hiring and use must be kept within the legal limits. If not, the pork producer is liable for "oppressive child labor" violations. - L

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