Fazio says H-2A not a 'workable program' for hiring legal employees

By STEVE BROWN

Capital Press

DUVALL, Wash. -- A farm labor expert questions whether a Washington state farm should have been forced to immediately fire illegal employees and pay a $1 million fine.

Dan Fazio, director of the Washington Farm Labor Association, said that in similar cases Immigration and Customs Enforcement officials have granted employers up to six months to dismiss workers found to have fraudulent I-9 forms. The forms verify the worker is legally in the U.S.

HerbCo International is the target of charges by federal prosecutors, who accuse the business of hiring and harboring illegal immigrants.

Fazio blames the federal H-2A guestworker program for HerbCo International's problems.

"HerbCo is one of 25 companies in the state who are trying to do it the right way. But there is no workable program for employers to hire a legal workforce," Fazio said. "HerbCo, if anything, was a little too conscientious. I don't know why they were in such a hurry to get rid of them (the illegal workers)."

However, ICE spokesman Andrew Muñoz said the agency's policy is that when a company is ordered to come into compliance, "it should make a good-faith effort immediately."

The fine is "a clarion statement for other employers to ponder who are engaged in this same widespread criminal conduct," Assistant U.S. Attorney Don Reno wrote in an April 23 sentencing memorandum.

The company has agreed to pay a $500,000 fine for each of two counts: harboring, concealing and shielding an illegal immigrant; and encouraging an illegal immigrant to reside, according to the memorandum. If approved by a judge, the fine will be paid over five years.

The memorandum described a plea agreement with HerbCo, chief executive officer Ted Andrews, vice president David Lykins Jr. and general manager Debra Howard, who were charged with aiding and abetting a pattern and practice of employing illegal immigrants.

In the plea agreement, the U.S. attorney recommends one year of probation for the three. Andrews said that on advice of counsel he could make no comment on the case until after a May 1 hearing, where the three are expected to plead guilty and face sentencing.

HerbCo grows organic herbs and employs 80 to 100 workers at its Duvall farm and about 350 workers at other farms in Colorado, Texas, Michigan, California and Hawaii. The other farms were not involved. Annual sales are $25 million.

An anonymous tip led to a 2011 ICE audit of HerbCo's payroll that found 214 employee files of 334 total lacked proper documentation, including those of 86 workers who were still employed, according to the memorandum. Even the person in charge of assuring compliance with the I-9 forms was an illegal immigrant, according to the document.

HerbCo fired the illegal workers and hired other workers through employment contractor Labor Ready, but the replacements could not keep pace with company orders, the court document said. Facing the potential loss of contracts with retailers, the general manager, Howard, then asked the 20 to 25 most productive of the terminated employees -- which she called the "A-Team" -- to return to work at night and paid them in cash, according to the memorandum.

"(T)here is no denying they were fully aware of the illegal status of the A-Team," according to the memorandum. "On the other hand, it is equally clear the A-Team was created to function as a temporary hedge to bridge the packaging disruption created in the aftermath of the April 21, 2011, dismissal of their primary workforce."

The farm should never have hired the workers back, Fazio said, "but what if the same workers came back with new letters and a new ID?"

Workers who have been dismissed often "just go across the road" to another farm, he said. They are not deported and instead stay in the workforce.

"Musical chairs would be the best way to describe it," Fazio said. "The worker loses his job; the employer loses a trained workforce. It's devastating small business."

Muñoz said because of its limited resources, ICE does not automatically deport dismissed workers.

"We look at individuals to see if they meet any of our priorities for removal -- if they're convicted of crimes or illegal re-entry or if they're immigration fugitives," he said.

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