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Food-processing giant Tyson Foods Inc. has had a rocky history with employer risks over illegal workers, even though the company asserts it has been compliant with federal immigration laws.

Tyson's cautionary tale can best be told through the journey of Amador Anchondo-Rascon, who worked at Tyson's Shelbyville, Tenn., plant. In 1979, this 20-year-old Mexican slipped into the United States twice. Caught the first time, he evaded border police on his second attempt, and headed to Florida. He did farm work, doubling his day's wages over his last job in Mexico. He then married an American citizen and became a legal resident. In 1989, he moved to Shelbyville and started working at the Tyson Foods plant.

In 1997, Immigration and Naturalization Service undercover agents bought fake IDs at one of Anchondo-Rascon's stores, and when confronted, he agreed to work with the INS. At a meeting in 1998 in the Tyson plant, Anchondo-Rascon and an undercover agent were asked by a Tyson manager to provide 2,000 workers. Anchondo-Rascon was offered up to $200 per head as a "recruitment fee."

In 2001, a grand jury indicted the company and six employees.

The U.S. Justice Department claimed that 15 Tyson plants in nine states had been conspiring since 1994 to recruit illegal immigrants, and that this practice was known by senior executives at Tyson. Anchondo-Rascon and three Tyson employees pleaded guilty.

Tyson denied any wrongdoing, however, saying that the managers were rogue employees. Three senior executives indicted in the case were found not guilty in March 2003.

This case was the high-water mark for federal enforcement of immigration laws against employers. Since then, fines have dropped. Between 1999 and 2004, for example, the number of employers fined has plummeted.

While Tyson appears to have shown that rogue managers were to blame for the hiring of illegal workers in the smuggling case, the company is embroiled in a separate legal battle in which it's having to defend itself against charges of racketeering.

Howard Foster, a Chicago attorney, sued Tyson for violation of RICO, the anti-racketeering act enacted in 1970 and designed to prosecute suspected members of the mob. Foster alleged that Tyson conspired to depress wages and deprive Americans of work by knowingly hiring illegal workers. His suit, dismissed by a trail court judge, is pending an appeal.

Tyson isn't the only company facing racketeering charges in the context of hiring illegal workers.

Zirkle Fruit, a Washington state fruit grower, settled with Foster late last year. The plaintiffs, local residents, say Zirkle had deprived Americans of jobs and good wages by hiring illegal workers. A RICO suit was initially filed against the company in 2000; dismissed, it was appealed and was set to go to trial in early 2006.

Zirkle claims that because it had hired a labor-service firm to find workers, it was the responsibility of the contractor, not Zirkle, to make sure workers were legally in the United States. Dozens of other defendant companies have taken similar positions, claiming they were unaware they were employing illegal immigrants because external labor recruiters were the ones responsible for hiring.

But according to Mira Mdivani, an immigration lawyer in Overland Park, Kan., the employers are still liable under the racketeering statute. RICO, she says, "makes it unlawful for any person to engage in, directly or indirectly, a pattern of racketeering activity on behalf of any entity."

"A company not only may be found liable for knowingly hiring or continuing to employ unauthorized workers, but also may be found liable if the company knowingly uses somebody else's unauthorized workers." She says she's been warning employers about RICO suits for some time.

June 1, 2006

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