May 31, 2006News
Invisible Plaintiffs
A federal lawsuit reveals the complications of immigrant-labor oversight.
By Nina Shapiro
Latino activist Hector Franco is driving urgently around Yakima, searching for his friends, Juana and Andrez Mendiola. Franco once talked Juana into becoming a plaintiff in a class action lawsuit against two fruit companies and an employment agency accused of conspiring to hire illegal immigrants to suppress wages. But minutes away from a May 11 federal court hearing on whether to approve a $1.3 million settlement, Franco is hoping to convince Juana or husband Andrez to testify against the settlement.

"I got snookered," Franco says. More than six years ago, he provided help to a Chicago attorney named Howard Foster, who initiated the suit against the Selah-based Zirkle and Matson fruit companies, as well as the Selective Employment Agency in Yakima, which retained workers for those companies. "What I didn't know at the time was that he was a big anti-immigrant attorney," Franco says. He says he intended the suit to put pressure on growers and politicians to press the case for legalization of undocumented workers. Instead, it is a case that has become associated with the backlash against illegal immigration, one of the first of a sweep of headline-making lawsuits brought by Foster, who belongs to group called the Federation for American Immigration Reform.

Franco finds the Mendiolas at their home, a modest rambler with a scuffed wooden floor. Both express some unease with the case as it now stands. In large part, they are dissatisfied with the $10,000 Juana is due to receive from the settlement—too little, she believes, considering she has lost jobs because of her participation in the suit. But Andrez also says that they have been wrongly perceived as being against illegal immigrants. In fact, both he and his wife lived in this country illegally for a time before receiving amnesty in 1986.

Noticeably skittish, both decide not to testify, however, and only Andrez accompanies Franco to the hearing. And so U.S. District Court Judge Fred Van Sickle approves the settlement with hardly anybody in the courtroom except the lawyers involved in the case, who on the plaintiffs' side will receive nearly half the settlement amount, $600,000, in fees and expenses. Some 600 people who once worked at Zirkle, most if not all legal immigrants, are expected to receive about $1,000 each. (The claim against Matson was settled separately for a confidential amount.) That "class" of people whom the lawsuit ostensibly represents, however, is nowhere to be seen. Its members aren't in the courtroom. Nor are they speaking about the case or the cause, any cause, it might represent.

"It's sort of a real hush-hush thing," says Luz Gutierrez, a staffer at the Hispanic Chamber of Commerce in Yakima.

It's an odd quiet surrounding a case of national import. The suit utilizes the novel and controversial strategy of suing employers that hire illegal immigrants under the Racketeer Influence and Corrupt Organizations Act. RICO cases are most commonly used to bust organized crime. The Zirkle lawsuit is the second case of its kind to settle, and the first in which workers are to receive money. The scene in the Mendiola home suggests that those workers are nonetheless reluctant to speak on the subject because it raises sensitive and complex issues for immigrant workers and their advocates. Many of those who are now legal once were not. It is also common for legal immigrants to have people in their family who are illegal. Over the past months, legal immigrants showed in force for massive protests in this state and across the country reacting to pending congressional attempts to crack down on illegal immigrants. Hector Franco helped organize such protests in Yakima.

At the same time, the suit plays cleverly on some pervasive beliefs in immigrant and labor circles, chief among them that agricultural employers exploit fearful and powerless undocumented workers, whose low wages thereby set the dismal pay scale for all farm workers. "They were being treated like indentured servants," says Foster, who is working on this case with the Seattle king of class-action attorneys, Steve Berman, and his associate, Andrew Volk.

With that rhetoric, the attorneys were able to generate some enthusiasm when they came to Yakima looking for plaintiffs and support. "I thought he was trying to help the community," Franco says of Foster. "I thought he was pro-immigrant." Erick Noel Nelsen, who at the time was a researcher for the United Farm Workers, also tried to help the attorneys out. "I was excited," he says. "I liked to see someone stick it to the growers."

While Nelsen's belief in open borders makes him cool to the idea of cracking down on illegal immigration, he thought the suit provided an opportunity for exposing "the reality of shamefully low wages." Farm workers typically earn between $8 and $10 an hour, which is above the state's minimum wage of $7.63, but the seasonal nature of the work means that they often make less than $10,000 a year. Tales of abuse abound. Before she went to work for Zirkle, Juana Mendiola says she worked in a packing house where a supervisor used to take to a microphone and command: "Work, donkeys."

Behind the front of unity between legal and illegal immigrant workers, moreover, lies a degree of resentment that the suit tapped. Andrez Mendiola, who was a farm worker for years before striking out on his own as a contractor, recalls standing in line for orchard work. The employers would offer a wage that he felt was too little, but "behind you are 10 to 20 illegals" willing to take the job. In the boycott years of the 1960s and 1970s, employers would bring in illegal workers as scabs.

So the suit got Juana Mendiola as a plaintiff, along with two others, and in 2000 moved into federal court. It dragged on for years. The District Court dismissed the suit, saying that the plaintiffs were unable to show a concrete connection between the growers' alleged use of illegal immigrants and the wages farm workers received. The Ninth Circuit Court of Appeals reversed the decision on the grounds that the plaintiffs' theory was plausible enough to have it aired in court. Because the case settled on the eve of trial, it never was aired.

One of the questions that would have been interesting to explore in court—and that hangs over agriculture as a whole in these times of roiling immigration debates—is whether the growers were knowingly and possibly deliberately hiring illegal workers. The plaintiffs' legal papers marshal several incriminating claims. Regarding Zirkle, the papers cite employees who say that many of the documents presented to the company to prove their legal status, as required by law, were obviously fake; the lamination had been sliced and a new picture put in, for instance. The papers also claim that supervisors warned employees of imminent investigations by immigration authorities. Lawyers for Zirkle and Matson say that the plaintiffs never produced any hard evidence for either claim.

Yet it seems impossible to deny that the growers knew they were hiring illegal immigrants, if not in individual cases then in aggregate. The numbers speak for themselves. In 1998, what was then the Immigration and Naturalization Service conducted an investigation of Matson and determined that 74 percent of 661 employees had used documents that did not match INS or Social Security records. In 2004, under court order, the Social Security Administration provided the plaintiffs with information about Zirkle employees. Seventy percent had submitted Social Security numbers that did not match the names in federal records. As the defendants' lawyers point out, such no-matches do not necessarily mean the employees are illegal; mistakes in filling out employee forms happen, and the Social Security Administration explicitly tells employers not to judge a person's immigration status on that basis. Still, those are awfully high numbers. "Seventy percent is not accidental," says Volk, the plaintiffs' lawyer. It concurs with estimates generally accepted that between 50 percent and 80 percent of farm workers are undocumented.

"What people don't realize is that there aren't tools for employers to verify a person's immigration status," says attorney Mark Watson, who represents Zirkle. Employers can check with the Social Security Administration to see if a number matches a name, but a no-match is simply supposed to be grounds for further investigation, and growers say they lack the time and methods to do such investigations during a harvest season that can be as short as a few weeks.

In truth, though, it would not serve the interests of either growers or undocumented workers to look at the matter more closely, whatever exploitation there has been. But in the kind of climate that has given rise to this suit, it's going to get a good look, whether growers and workers like it or not.