Federal Employment Raid Hits Firm Using Verification Program

December 14, 2006

U.S. Immigration and Customs Enforcement’s December 12 raids on meat processing firm Swift & Co., resulting in the arrest of almost 1,300 undocumented immigrant workers in plants across six states, has left the 12,000 employers participating in the federal government’s employment verification program with much to think about.

The raids on Swift, which employs 13,000 people, temporarily halted production at the world’s second-largest processor of fresh beef and pork. It’s the largest work site enforcement action ever by the Department of Homeland Security.

In addition to immigration violations, the DHS is investigating a scheme in which Swift workers used valid Social Security numbers, birth certificates and other documents to pose as the Americans whose identities they stole. So far, 65 people have been arrested and charged with criminal violations related to identity theft.

Swift hired illegal workers despite the fact that it has been using the federal employment verification system called Basic Pilot since 1997. The program checks the legal status of potential hires against Social Security Administration and DHS databases. It is designed to detect counterfeit Social Security numbers that don’t match candidates’ names.

“Swift believes the actions taken by the government violate the agreements associated with the company’s participation over the past 10 years in the federal government’s Basic Pilot program,” according to a statement from the food processing giant. Swift president and CEO Sam Rovit said that Swift has never knowingly hired illegal workers and does not condone the practice.

The company also noted that scrutinizing a job candidate’s background and identity has limits under the law. Swift cites a 2001 incident in which the Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices brought a complaint against the company, which was ultimately settled for $200,000.

But the problem at Swift arose from a situation that the Basic Pilot system can’t flag—the use of legitimate but purloined identification.

Washington, D.C., press conference December 13. “It doesn’t inoculate against all kinds of fraud.”

It leaves employers in the middle of a delicate balancing act, according to a spokesman at the American Meat Institute, which represents companies that process 70 percent of U.S. meat and poultry.

“The actions taken [December 12] against Swift & Company illustrate a fundamental dilemma faced by employers nationwide: verifying employment in a manner that ensures that employees are eligible to work in the United States while also protecting the civil rights of foreign-born people,” according to a statement from the organization. 

Chertoff argued that efforts to halt the use of illegal workers are undermined by a law that prevents the Social Security Administration from notifying his agency when the same Social Security number is used multiple times for many different jobs. He urged Congress to eliminate the obstacle.

Companies across the country will be keeping a close eye on Swift’s situation, according to John Gay of the Essential Worker Immigration Coalition.

“This is a high-profile incident that is unfolding on the front page of newspapers,” he says. “CEOs from all over the country are going to be looking at this.”

The raids on Swift may give more companies pause about the Basic Pilot program and, depending on the outcome with Swift, could lead to an erosion of confidence in the initiative, he explains.

Big companies like Tyson Foods are pushing for a comprehensive immigration reform policy to avoid a similar situation. A Tyson spokesman said Basic Pilot is effective in helping it verify the Social Security numbers of job candidates but that there are limitations like its inability to identify fraud when an individual assumes someone else’s name by using their Social Security number.

Gregory Wald, an attorney with Squire, Sanders & Dempsey in San Francisco, believes the Swift raid “will have a negative public relations impact on the Basic Pilot program. A lot of employers would take a pause before they jump into this program.”

So far, being in the Basic Pilot program seems to have given Swift the benefit of the doubt. The government has not filed charges against the company—a step it took last spring against a pallet maker in the second-largest work site enforcement in history. But Swift is not out of the woods, since the federal investigation is ongoing.

In fact, when companies use Basic Pilot in good faith, they are shielded from criminal or civil penalties if they employ illegal workers. But they are not immune from enforcement activity, as Swift found out.

The company argued in a suit filed November 28 in U.S. District Court in northern Texas that the disruption of a raid could result in a $100 million loss.

Although the Swift case may cast a shadow on Basic Pilot, the program itself is becoming more popular. About 12,000 companies have signed up, including 2,000 this fall, according to Christopher Bentley, a spokesman for the U.S. Citizenship and Immigration Services.

“We see that trend continuing and employers relying on Basic Pilot as a source of really good information to verify new hires,” Bentley says. The agency will launch an outreach campaign next year to get more companies to sign up.

Homeland Security maintains that most employers want to comply with immigration law. It encourages companies to augment Basic Pilot by adhering to a number of best practices that include establishing an internal training program, arranging annual I-9 external audits, setting up self-reporting procedures, installing a tip line for employees and submitting an annual report to the U.S. customs agency.

As the political debate regarding immigration raged in 2006, the government has stepped up work site enforcement. Criminal arrests have increased from 25 in 2002 to 716 this year. The number of illegal aliens arrested has jumped from 485 to 3,667 during the same period.

“We’re going to make it inhospitable to break the law here,” Chertoff said.

At the same time, he is calling for immigration reform that includes both enforcement and a temporary guest worker program to bring in foreign workers to meet labor market demands.

“Getting comprehensive reform right is going to save everybody a headache,” Chertoff said.

Mark Schoeff Jr. and Gina Ruiz