Raids on Mississippi chicken plants and the intersection of fake documents, disparate impact and employer fines for not hiring illegal aliens

Legal filings out of the U.S. District Court for the Southern District of Mississippi provide some very interesting insight into the raids on the Mississippi chicken processing plants earlier this month.

In some cases cited in the affidavits, under the terms and conditions of ICE electronic-monitoring programs, people who wear the ankle monitors were not authorized to work in the United States . 

But as the affidavits also reveal, an employer challenging the authenticity of the documents presented by employees (let's say under suspicion of forgery, fake social security numbers, photos) used as part of the employment check process could result in the employer being charged with national origin discrimination for failure to hire an illegal alien.

From The Conservative Treehouse reference to a WaPo story on the issue:

"Now, at first review it might sound like the plant employers would be in big trouble; however, buried deep in the article is this statement from one of the employers (Koch Foods), that everyone should pay attention to:

Koch spokesman Jim Gilliland told The Post that Koch Foods risked violating federal law that bans discrimination on the basis of national origin for requesting documents beyond what an applicant provides, if those materials appear authentic.

I can tell you with 100% certainty that what Mr. Gilliland says there is absolutely accurate.  There are two sets of laws in conflict with each-other; and you can be sued, and/or fined, by the United States Department of Labor and/or the U.S. DOJ Civil Rights Division for not hiring illegal aliens.

If you question the authenticity of any applicants identity; and that applicant is one of a legally protected category (think “ethnicity” or “origin”); and the employers authenticity challenge results in a “disparate impact” of non-eligibility for employment – as determined by ethnicity (Latino); then you are in violation of U.S. labor laws.  This happens regardless of it being unlawful to hire illegal aliens.

If you challenge the presented documents, and all the outcomes of those challenges result in non-eligibility of Hispanics as a greater percentage than non-Hispanics, you are violating employment law under the DOJ (Civil Rights Division) definition of “disparate impact.”   In this example, and it is common (believe me), additional employment eligibility checks due to suspicions of false ID’s, is unlawful and legally risky."

We already know use of E-Verify is federal law under 8 USC 132a(d) and one Twitter user suggested an action President Trump could take to make it mandatory through Executive Action:

Exit question: How will President Trump and Attorney General Barr and Acting Secretary of Labor Pizzella deal with the disparate impact issue and DOL fines? Can they do it by eliminating the requirement an employer keep paper backup records of the documents provided as part of the employment check process?

H2-B visa, minimum wage violations found by U.S. Department of Labor

Subsequent to a U.S. Department of Labor investigation, a California -based employer and their H-2B visa agent in Texas paid back wages stemming from violations of the H2-B visa program and the Fair Labor Standards Act (FLSA)

BLUFFTON, SC – After an investigation by the U.S. Department of Labor’s Wage and Hour Division (WHD), Montage Hotels & Resorts LLC – operating as Montage Palmetto Bluff in Bluffton, South Carolina – has paid $8,301 in wages to an employee for violating labor provisions of the H-2B visa program. The Laguna Beach, California-based employer also paid a civil penalty of $8,301 assessed by WHD for the violation.

WHD determined the employer failed to meet a condition of their contract for participating in the visa program when they failed to hire a qualified U.S. worker who had applied for a job as a cook at the resort. As a result of the investigation, Montage Hotels & Resorts hired the employee and paid her wages she would have earned from the start of the employer’s H-2B contract.

In addition, WHD found the employer’s H-2B agent – Frisco, Texas-based Practical Employee Solutions – unlawfully charged visa fees to the non-immigrant guest employees. This practice resulted in minimum wage violations of the FLSA when the charged fees resulted in the employees’ rates of pay falling below the federal minimum wage of $7.25 per hour. Montage Hotels & Resorts paid 15 employees $1,233 in wages to remedy those violations. The employer also violated the recordkeeping requirements of the FLSA when payroll records did not reflect the agent’s fees as pay deductions.

Read the full DOL news release here.