Immigration: Don’t Ask, Don’t Tell

Yesterday’s raids on Swift & Co. meatpacking plants by Immigration and Customs Enforcement (ICE) in six of its facilities across the nation exemplifies one of the biggest problems facing U.S. companies and the immigrant workers they employ.

The government’s employment verification system is irrevocably broken and the estimated 200 Latino workers and their families caught up in the mass sweep in Greeley are paying a heavy price for bureaucratic bungling and short-sighted policy.In September, Colorado Confidential posted A Funny Thing Happened on the Way to the Congressional Hearing, a report on a field hearing conducted by Rep. Marilyn Musgrave in Loveland seeking public input on the Basic Pilot worker verification system.

Musgrave and Subcommittee Chair Buck McKeon (R-CA) got an earful.

In the context of the Greeley raid, the remarks of Jack Shandley, senior vice president for human resources at Swift & Co., at the hearing are even more prescient.

Employers are required to retain I-9 employment verification forms for all new hires. When completing the I-9 form, a total of 29 distinct documents may be used by the employee to properly establish his or her identity.

Under the current U.S. law, employers assume responsibility for verifying that the documents required by the government show the employment eligibility are valid and relate to the bearer.

It is important to note that we as employers are significantly limited in our ability to verify the identity of a new employee:  we can’t ask for a specific identification document; we can’t ask for additional forms of identification; and we can’t refuse to accept any single eligible identification document.

Shandley’s toe-the-line tone is likely the result of a $2.5 million fine levied against Swift by the Justice Department in 2002. Swift was charged with discrimination and unfair documentary process for subjecting applicants to a higher level of scrutiny if they appeared to be or sound foreign to hiring managers. The fine was eventually reduced to $187,000 and a promise to reconsider the applicants who filed the suit for jobs at its Worthington, Minnesota plant. Swift characterized their actions as getting “in hot water for allegedly pushing too hard to determine that employees possess the status they claimed.”

While negotiating the settlement with the federal government, Swift agreed to use the Basic Pilot system, a national online database that searches the Department of Homeland Security and Social Security Administration records to determine work eligibility. However, the system is riddled with errors and cannot detect fraudulent duplicate records within its own database. Document counterfeiters also learned quickly how to subvert the process – steal valid personal identity documents from U.S. and naturalized citzens, sell them on the blackmarket under which the same document can be used  repeatedly to obtain new official state-issued identification cards.

Gene Pielin, testifying as a representative of the Colorado Nursery and Greenhouse Association, referenced a study by the Immigration and Naturalization Services (INS) that found the government databases used to verify legal work status have high error rates. Overall, 20 percent of workers are incorrectly rejected as unauthorized to work. The false-negative rate for foreign-born and/or naturalized American citizens ranges between 35-50 percent.

Correcting errors, which can take up to two weeks, falls on the employer and employee to prove that the government information is wrong. The same study also reported that four times out of 10 the INS and Social Security Administration never or only sometimes returned phone calls by employers appealing wrongful determinations. For companies with immediate hiring needs – like meatpacking which turns over one-third of its workforce each year – or highly seasonal jobs in the greenhouse and landscaping industries, a delay of two or more weeks to verify employment could spell financial ruin for a company.

Essentially, the gross incompetence of the Department of Homeland Security in setting up a highly flawed verification database has forced a whispered “Don’t ask, don’t tell” policy among employers that attract large numbers of undocumented workers who make a living piecing together seasonal jobs or are willing to work in undesirable and often dangerous positions. In Greeley, where the current unemployment rate is a miserly four percent, there are few native born workers available for the brutish work in food processing plants.

Play by the rules and you will be at a distinct competitve disadvantage, said Dawn Thilmany, a CSU agriculture professor and expert in migrant labor. “It’s all wink, wink,” she said. “The companies say they don’t but they know even somewhat by the language skills how new someone is to the country. And thus how likely they are to be legal or not.”

But ICE presses on despite the inadequacies of a system they are party to. In just the first 10 months of this year, the agency has filed 445 criminal charges against employers suspected of hiring undocumented workers. In all of 2002, just 25 criminal complaints were filed.

And communities like Greeley will continue to be targeted.

Meatpacking shifted from a largely urban, unionized and skilled workforce in the 1950s to rural, non-union and low-skilled employment by the end of the 1980s. The rural workforce in processing plants has doubled in the last 20 years. Almost one-third of meatpacking employees are Latino and of that group, 82 percent are foreign-born, according to Thilmany’s research.

Advancements in factory automation and the ability to lower costs by moving the processing plants closer to the feedlots that dot Colorado’s eastern plains, are among the union-busting activities by the Reagan Administration in the 1980s. Further, the annual cap of 20,000 work visas for Mexican citizens has not changed since 1972 while an estimated 275,000, largely Latino, undocumented workers reside in Colorado alone.

These incredibly short-sighted policies created much of the situation that the Swift workers and their families found themselves in early Tuesday morning.

As Thilmany relates it, “I don’t know that it was loose standards before rather than it’s high pressure now. It’s like the whole drunk driving movement 25 years ago. All of a sudden, we’re serious now about enforcement.”

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Wendy Norris

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