"These company executives were looking to help themselves." "They knew they were breaking the law with their secret night shift, off the book workers and the envelopes stuffed with cash.
‘Silent raid’ costs Duvall farm
$1 mil. fine expected in illegal worker probe
The trouble at HerbCo started in April 2011 with what’ve become known as a “silent raid.” Immigration officials going over the Duvall herb producer’s books found that three-fifths of HerbCo’s employees couldn’t show they had permission to work in the United States. Within days they were fired.
Then two dozen were hired back.
BY LEVI PULKKINEN, SEATTLEPI.COM STAFF
Updated 03:29 p.m., Tuesday, May 1, 2012
For that, the company was fined $1 million on Tuesday. Three managers – including HerbCo owner Ted Andrews – also plead guilty to misdemeanor charges and were sentenced to probation as part of a plea deal struck with federal prosecutors in Seattle.
"These company executives were looking to help themselves," U.S. Attorney Jenny A. Durkan said in a statement. "They knew they were breaking the law with their secret night shift, off the book workers and the envelopes stuffed with cash.
"Employers need to know there is a heavy price to pay - in this case a million dollars - for knowingly breaking the law by hiring ineligible workers."
Andrews acquired the Duvall farm in 1993 and ultimately grew HerbCo into a national distributor of organic herbs with farms in Michigan, Colorado, Texas and Hawaii, as well as Washington. Prosecutors note HerbCo’s herbs are sold at about 2,700 grocery stores around the country, and the company has annual sales of about $25 million.
Admitting company managers hired back workers knowing they were not entitled to work, attorneys for HerbCo contend the company would not have been able to continue to operate if they hadn’t done so.
HerbCo was among 2,500 companies audited by Immigration and Customs Enforcement investigators between October 2010 and September 2011. By comparison, 500 companies were similarly audited by ICE during the 2008 fiscal year.
While ICE leaders contend such inspections deter employers from hiring illegal immigrants, they have been derided as little more than exercises in paperwork slightly more palatable than raids at work sites.
Describing the “silent raids” as “worse than worthless,” Washington Farm Labor Association Director Dan Fazio said the audits stem from a political climate that’s left the country without a functional guest worker program to staff America’s farms.
“The employer merely hires new undocumented workers to replace the old undocumented workers,” Fazio said. “It disrupts the employer, it disrupts the worker and it does absolutely nothing.”
Workers fired after ICE audit returned days later
In early 2011, ICE auditors reviewed employment paperwork filed by HerbCo and found 214 of the farm’s 334 Washington employees were using falsified identification numbers. ICE investigators told HerbCo its employees had three days to provide valid documents or be fired.
The employment eligibility verification forms reviewed by ICE – I-9s – are essentially a pair of statements. The employee presents a photo id and a proof of eligibility to work – usually a driver’s license and Social Security card – and certifies they are authentic, while the employer affirms they’ve reviewed the documents.
During an audit, ICE investigators check the proofs of eligibility against government records. If the records are invalid, investigators notify the employer and suggest the worker either show valid documentation or be fired.
While many of the employees had already left HerbCo, 86 who could not show they were legally able to work in the United States were fired on April 21, 2011. Writing the court, attorneys for Andrews and the other two HerbCo managers described a tearful staff meeting during which several long-time employees were told to leave.
“When Ted Andrews had to terminate a large group of employees … they gave management a standing ovation,” said HerbCo attorneys J. Ronald Sim and Geoffrey Revelle, with the Seattle firm Stoel Rives.
“In addition to its severe financial consequences, this matter has been difficult personally for Ted, having lost employees and really a family that he worked with for many years,” the attorneys continued.
Through her attorney, Debra Howard – another HerbCo employee slated to be sentenced to probation Tuesday – described the firings as “personally devastating.”
“She saw people she knew for five years lose their livelihoods, and forced to get by on public assistance or lower-paid jobs for other employers,” attorney Irwin Schwartz told the court.
Those firings left HerbCo painfully short-staffed. While temporary workers hired through a day labor provider were brought in, the new workers were didn’t know how to process and pack perishable herbs.
Fearing they would be unable to meet production deadlines, Andrews, Howard and HerbCo sales manager Dave Lykins created what they dubbed an “A-Team” comprised of 20 to 25 former employees fired for lack of immigration papers. Members of that team were paid in cash to work a night shift while new, legal workers were brought up to speed.
HerbCo disbanded the “A-Team” two months later, long before they learned of the ICE investigation launched following a tip. That investigation ultimately ended in a plea agreement that will see HerbCo pay the government $1 million over the next five years; Andrews, Lykins and Howard were sentenced to one year on probation by U.S. District Court Judge Ricardo Martinez.
"This is a sad case," Martinez said in sentencing the trio, according to a Department of Justice statement. "But the laws of the United States are the laws of the United States.
"Congress passes the laws and we must all obey."
Prosecutor: $1 million fine necessary
Noting that HerbCo managers knew with certainty that the “A-Team” members were working illegally, Reno acknowledged that the move was “a temporary hedge” meant to sustain the business in the wake of the ICE audit.
The prosecutor also noted HerbCo’s hiring practices – aside, apparently, from bringing back undocumented workers after they’d been fired – are not outside the norm.
“Within the worksite universe of either the United States or the state of Washington, the defendants’ conduct appears unremarkable only because of the sheer numbers of other culpable employers who have not been prosecuted for similar conduct,” Reno told the court. “Of 20 million illegal aliens residing in the United States and 230,000 in the state of Washington, 86 were employed at Herbco.”
The $1 million fine, Reno suggested, will dissuade others from knowingly hiring illegal workers while not bankrupting HerbCo.
Writing the court of Andrews’ behalf, HerbCo attorneys J. Ronald Sim and Geoffrey Revelle said the company extended benefits to its employees well beyond those normally associated with the agricultural industry. Workers were provided health insurance and retirement plans, as well as a share of the company’s profits. Many had been with the company for years, in some cases more than a decade.
The fine aside, getting rid of the workers has cost HerbCo more than $2 million, the company’s attorneys told the court. Once profitable, the company was running in the red in the months following the audit.
None of the defendants contend they believed all the employees to be legally entitled to work. Attorneys for the company suggested such a claim would be ridiculous.
“It would be naďve to suggest that prior to the ICE audit … HerbCo management, like virtually all agricultural businesses, had no suspicion that some of its employees were illegally in the United States,” said the attorneys, with the Seattle firm Stoel Rives.
Immigration officials assert audits like the one HerbCo underwent deter employers from hiring illegal immigrants.
“Employment opportunities remain a primary motivation for aliens seeking illegal entry into the United States,” ICE Director John Morton told Congress last year. “By focusing on employers that are willing to hire illegal workers, we can eliminate the incentive that leads illegal aliens to violate our nation’s immigration laws.”
Attorneys for HerbCo disagreed, as did Fazio, whose Farm Bureau-backed organization assists Washington farmers with finding seasonal workers.
The I-9 system leaves employers in an untenable position, the HerbCo attorneys noted. They’re not allowed to demand additional documentation from workers – the Justice Department has won filed civil actions against several employers for doing so – but are then faulted for failing to insure their employees are in the country legally.
Workers who are fired following an ICE audit can still seek new employment using the same paperwork they presented to their previous employer, Fazio said. And employers who have fired the workers identified by ICE as undocumented aren’t in any better a position to know if their new employees have valid papers.
“All these things have done is make employers really careful about filing out I-9s,” Fazio said. “It’s a joke.”
Employers can voluntarily enroll in the E-Verify system promoted by ICE, which basically has ICE audit new employees’ documents shortly after they are hired.
As a practical matter, though, such verifications would cripple agriculture.
In surveys conducted by the Washington Farm Labor Association, about 70 percent of Washington agricultural workers described themselves as not legally entitled to work in the U.S., Fanzio said. Nationwide, he continued, about half of farm workers said the same thing – when interviewed by immigration officials.
What’s needed, Fazio said, is a viable guest worker program that provides an efficient legal framework for farm workers to come to the United States.