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1408 PD: Prepare for the worst if you hire immigrant workers

Ben Yale Published on 29 September 2008

When a cow with Bovine Spongiform Encephalopathy (BSE or mad cow disease) was found in Washington State a few years ago, almost within hours officials identified the farm it came from and its dam.

Some ask, “Why then cannot the government locate the 12 million unauthorized immigrants as easily?”

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The joke answer is to give each of them a cow. But for dairymen it is no laughing matter.

Immigration looms over the dairy industry like a large dark storm capable at any moment to break forth in a widespread wind and rain torrent or a more focused tornado, damaging much of the industry or destroying just a few. No matter where one looks, there is no light to be seen promising fairer weather though political forecasters predict relief will come, sometime. Dairymen, like much of American agriculture, rely upon immigrant labor. American immigration and economic policy has effectively allowed and even encouraged the use of this labor. Congress has failed to provide a clearer, less risky means to satisfy the legitimate need for labor with a workable and sufficiently sized program that provides labor to maintain economic stability and protects our national security.

With estimates of eight to 20 million aliens employed in the U.S. today at hundreds of thousands of businesses throughout the entire country, our government cannot possibly find all of the immigrants, identify those who are here lawfully or not, arrest those who are not, try them, incarcerate them for a minimum of five months and then transport them to their home country. We do not have an army (or even an army plus national guard plus local police) big enough to do the kind of search required, even if the American public would tolerate it. There are not enough buses or trains or trucks or anything to move that many people, and there are certainly not enough prisons or camps to detain them.

As a point of reference, the U.S. incarcerates in its prisons and jails more than 2 million people today (more people than live in 16 of our states and the District of Columbia). It costs taxpayers more than 40 billion dollars to house the murderers, drug dealers, thieves, rapists, child molesters, embezzlers and other never-do-wells. Multiply that cost by six and add the costs of constructing facilities, acquiring transportation, additional arresting officers, tribunals and the other parts of enforcement. The number reaches a staggering quarter of a trillion dollars!

On top of that, include the social costs of those who are citizens but are related or dependent upon those who are arrested, the damage to businesses relying on immigrant labor, loss of business to those who sell all kinds of goods and services to the immigrant workers and the other costs grow more. The cost to our sense of what America is and who we are and where we come from is immeasurable.

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As much as those sobering numbers demand a solution, even an immediate one, none is forthcoming. Perhaps next year, for sure. Even though the government is unable to identify and locate the millions of immigrants in our country, it is increasingly demanding that employers do so. Although it cannot come after every employer and investigate all of the several hundred thousand employers in this nation, it can select a few targets. Through the end of the year, the Department of Homeland Security will execute a few hundred raids on businesses that have immigrant employees. These unlucky enterprises, most of them small and family-owned, will represent less than a small fraction of 1 percent of all employers and an even lower percent of employees. It will not be a major, general storm, but isolated tornados hitting some, sparing many. But for those hit, the odds will be 100 percent. The lesson? Avoid being one of them.

In the current legal-political-social-economic-cultural world in which dairymen do business, there is no foolproof way to avoid being raided for unauthorized immigrants except to have no employees. The randomness by which some will be chosen and others spared is unknowable and, as a result, unpredictable. Everyone should do what they can to comply with the law. Besides compliance with the Form I-9, which is the greatest protection an employer has, and it is formidable, here is an incomplete list of things that a dairyman should consider to reduce his or her risk.

Foremost, recognize that no matter how important immigrant labor is to your farm, knowingly hiring an alien who is not properly documented is illegal. Just because the law and an Form I-9 provide protection by limiting your knowledge about documents presented by would-be employees, this does not mean there are no risks to the employer.

Every dairyman that hires anyone has the risk of that employee being an unauthorized alien and being a target for a raid on the dairy farm. Simply saying and believing, “It can’t happen to me,” does not make it so. Recognizing that you could be the subject of a raid should make you aware of parts of your operation that expose you to unnecessary risk. That is the task at hand.

Now that you have had this horrific thought, do not panic, fret or overthink the issue either. As dairymen, we are great at walking along the abyss of disasters from disease, weather, fire, inspectors or whatever else could happen. Keep the mind clear to think clearly.

Look carefully over how you hire employees. Do you or any of your employees provide information directly or indirectly to assist immigrants in getting documents? The clearly illegal action would be actually furnishing documents. Don’t! But even referring applicants to places or individuals that you think may supply them could be enough to incriminate you. Again, stop. If any of this has occurred on your farm, contact an attorney right now for advice on how to proceed.

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One thing that has happened in some of the raids is that top management has taken a blind eye to mid-level managers or other employees doing just these things. Make sure you or your employee-managers are not doing that. Whether you do it or not, it is still your farm at risk. If you have good reason to know that one of your workers submitted false documents, terminate the employment. The risk is too great for you and your investment.

Avoid dealing with companies that tell you they can supply you immigrant workers with proper documents. At least investigate fully before signing on. I have interviewed several such operations, and in every case, I did not find the level of assurance that everything was done properly. In any event, such brokers are under a great deal of scrutiny, and even if you acquired a properly documented worker, you still might be investigated because of the broker.

Take all Social Security no-match letters seriously and properly respond to each and every one of them.

Prepare yourself in the event of a raid. Have an action plan in place in the event a raid occurs, and train all of your management and supervisors how to respond. Practice it. Get assistance from your neighbors. Join with other dairymen and create an emergency milking team between all of you to respond in the case of any disaster that impacts the milking team (such as a tragic loss of several employees by a car accident or a raid). More than having an agreement, actually have the teams practice occasional milking on the other farms.

Establish ways of communicating with everyone on the farm. Go over things that need to be done the first 10 minutes, the first hour, the first milking, the first day. What would have to be done? What could be delayed? Who could do it? All of these are questions that need to be considered and answered now. Put the plan in writing. Go over the plan with others in your operation. The day this happens may be the day you are on the plane to Hawaii. This is no time for secrecy. This is a great time to find and work proactively with an attorney knowledgeable in immigration matters. Having a relationship now when there is no pressure will make working together under pressure much more beneficial and efficient.

Reconsider your staffing needs. Can you do with less help? Is there technology that could reduce the need for labor and thus the exposure of having an undocumented worker? In light of the risk of a raid from Homeland Security, is it affordable? Notify nearby employment offices of any openings in the dairy. Everyone says no “real American” would work under those conditions, but there are tens of thousands of them doing it today. If you do not get a good employee in this manner, it at least bolsters the argument that immigrant labor is necessary. In either case, it is a positive.

Avoid publicity and absolutely prohibit anyone from advertising, broadcasting or filming any of your workers. Signs prohibiting photography should be posted in and about the barns and corrals.

Keep your mouth shut about who your employees are and where you think they came from. It is no one else’s business and what you say can be repeated, restated and reported in a way that can harm you and your business.

First and finally, work with your cooperative, trade associations, farm groups and others to educate your state’s Congressional delegation on this issue so that the storm clouds go away and the laws are clear and workable. These are by no means everything that can be done, but thinking about it and doing something will go a long way to protecting you from the risks of a raid. PD

Ben Yale
Attorney at Yale Law Office

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