Labor shortage kept company from keeping commitments

By STEVE BROWN

Capital Press

SEATTLE -- HerbCo officials did the right thing when they fired 86 workers after an April 2011 federal audit revealed their documentation was fraudulent.

But they did the wrong thing a few days later when, to keep their business viable, they rehired about 25 of those workers.

As a result, HerbCo International Inc. was fined $1 million and put on probation, and three company executives pleaded guilty to a misdemeanor offense and were sentenced to one year of probation.

In a plea agreement accepted May 1 in U.S. District Court, CEO Ted Andrews III, vice president David Lykins Jr. and general manager Debra Howard admitted they rehired the workers when the company found itself unable to keep its commitments to customers.

An Immigrations and Customs Enforcement official said that until the company rehired the illegal immigrants HerbCo was within the law. "But their action turned an administrative audit into a criminal investigation," said Brad Bench, acting special agent-in-charge of the Seattle office of ICE's Homeland Security Investigations.

"That was a mistake," Andrews said after the sentencing. His company was faced with having to harvest a continuously ripe herb crop, and customers were demanding regular deliveries. "If we couldn't fulfill our contracts, I don't know what our customers would have done."

The company's day in court went as expected, Andrews said, but he was "surprised by how complimentary the prosecutor was with us because we cooperated fully."

In a sentencing memorandum, Andrews' attorneys, J. Ronald Sim and Geoffrey G. Revelle, encapsulated the dilemma that many agricultural businesses find themselves in: "The government candidly acknowledges that there are millions of people employed in the United States based on false documentation. But the problem for the employer is, 'Which ones are illegal?'

"Here the law essentially creates a Catch-22. The employer is required to make the hiring decision before even inquiring about documentation," they wrote. "Once the employer offers the position, then the employee can present documentation to fulfill the I-9 requirements. If the documentation presented by the employee is apparently valid, not only is the employer's obligation satisfied, but the employer is precluded from further inquiry. ..."

Bench acknowledged that there are a lot of easily obtained, fraudulent documents, "especially where there's a high concentration of immigrants."

Some companies have requested ICE audits to verify their workers' legality, he said. The IMAGE program (ICE Mutual Agreement between Government and Employers) trains employers how to recognize fraudulent documents and helps them ensure their employees are legal.

When employers cooperate with ICE, "Homeland Security Investigations can eliminate or significantly reduce penalties," Bench said.

HerbCo now depends on E-verify for 100 percent of its hiring, Andrews said, but keeping a stable, trained workforce like he had before is difficult. Last summer HerbCo hired 360 people, not counting the ones who didn't make it through the first day. Their average tenure was 27 days, and the company ended up with 60 employees.

"We've had 20 years of growth and profitability, and we have very little debt. A $1 million fine would have sunk most companies," he said.

"If an herb company in Western Washington goes under, it's like a tree falling in the forest," he said. "They (ICE) could shut agriculture down."

Information

ICE special agent Brad Bench said employers in his region -- Oregon, Washington, Idaho and Alaska -- can request an audit by calling 206-442-2244. Employers elsewhere can go to the ICE website -- www.ice.gov -- to locate an office.