New Angle in Fight Against Hiring Illegal Immigrants

Poultry giant Tyson Foods Inc. was sued Tuesday under federal racketeering laws, becoming the latest and largest target in an attempt to punish employers of illegal immigrant workers.

Corporate and immigration law experts said the approach has the potential to become a private “enforcement tool” supplanting federal employer sanctions laws, but only if plaintiffs can pass the high bar of proof required under the Racketeering Influenced and Corrupt Organizations statute.

Similar suits have been backed by supporters of strict immigration law enforcement, who say the prospect of treble damages under RICO could force employers to think hard before hiring undocumented workers. That could have a big effect in California, where roughly half of the estimated 7 million to 12 million illegal immigrants in the U.S. are employed.

Filed in federal court in Tennessee on behalf of four U.S. citizen employees, the civil lawsuit contends that Tyson sought out illegal immigrants because they accept below-market wages and “deplorable” working conditions. Legally authorized workers suffered as a result, the suit claims.

In December, Tyson was indicted by the Justice Department for allegedly conspiring to smuggle undocumented workers to 15 of its plants in the South. A Tyson spokesman said the company had not yet seen the complaint and could not comment.

The suit is the fourth of its type filed by Chicago corporate attorney Howard Foster, who has received some support from the Federation for American Immigration Reform, a Washington-based group that favors strict immigration laws and enforcement.

The lawsuits also borrow from the language of immigrant worker advocates by making the case that undocumented workers are vulnerable and exploited. The two camps often are at odds.

Traditionally associated with mobsters and tax evaders, RICO was expanded in 1996 to cover the hiring, smuggling or harboring of illegal immigrants.

To succeed, a RICO lawsuit must first prove that the underlying crime was committed and then show that a racketeering enterprise--such as a pact between a smuggler and an employer--existed on top of that.

A RICO conviction carries the penalty of treble damages. “That’s enough to get any employer’s attention,” said Mike Hethmon, staff attorney with the immigration reform group. “People hire illegal aliens not for ideological but financial reasons.”

Hethmon said his group hopes a successful lawsuit will prompt similar lawsuits in industries with a high percentage of undocumented workers.

Though initially greeted with skepticism, the legal theory got a boost in November when the U.S. 2nd Court of Appeals reinstated a RICO case filed by Foster against a Connecticut janitorial company, Colin Service Systems Inc., on behalf of a competitor.

Both parties in that case are set to meet with a mediator in late May, which could lead to a settlement.

A similar case against Zirkle Fruit Co., an apple grower in Yakima, Wash., was dismissed and now is on appeal.

Last month, Foster filed suit against IBP Inc. on behalf of two former legally authorized workers, claiming wages were depressed by $4 per hour at the company’s meatpacking plant in Joslin, Ill, because of the employment of illegal immigrant workers.

The suit claims that half of the plant’s 2,000 employees are undocumented and that managers actively recruited them.

In a statement, IBP said the lawsuit was “unfair and grossly inaccurate.” IBP is owned by Tyson Foods.

Foster said conservative groups have referred potential clients to him. “I’m not anti-immigrant,” said Foster, who directs complex litigation for the Chicago firm of Johnson & Bell. “I would say I’m against illegal immigration, against the masses of illegals who are coming into this country illegally and depressing wages by as much as 30%.”

Legal experts said the litigation, if successful, also can result in a lot of money for Foster and his colleagues, including prominent Seattle class-action attorney Steve Berman, who was involved in tobacco litigation.

“Certainly people who do immigration law would say that opening up a private enforcement policy like this is potentially very significant,” said Gerald Neuman, a professor at Columbia Law School specializing in immigration law. “If proven, the damages can be substantial.”