Washington State Fruit Grower Agrees to $2.25 Million Fine to Resolve I-9 Issues

Immigration and Customs Enforcement (ICE) and Broetje Orchards of Prescott, Washington, reached an agreement last Tuesday whereby the company agreed to pay a $2.25 million civil fine to resolve issues stemming from several years of I-9 investigations. In the most recent audit, ICE accused the company of employing almost 950 employees who were not authorized to work in the United States. According to an ICE official quoted in the Capital Press, this is the largest civil worksite penalty on record against any business in Washington, Oregon, Idaho and Alaska and one of the largest fines ever levied on an agricultural entity nationwide.

Broetje Orchards is a family business that grows apples and cherries and employs over 1,000 permanent employees and almost 2,800 seasonal workers during harvest season. It is one of the country’s largest apple growers.

ICE’s 2012 Investigation of Broetje Orchards

The matter started in 2012 when ICE served a Notice of Inspection (NOI) on Broetje Orchards requesting the I-9 forms and other documentation. After reviewing these documents against government databases, ICE issued a Notice of Suspect Documents (NSD), determining approximately 1,700 employees did not possess authorization to work in the United States. At this point, ICE gave Broetje Orchards the opportunity to notify the 1,700 employees, who had the chance to provide any other documentation to establish work authorization. Apparently, this investigation concluded when Broetje Orchards agreed to terminate all employees who were not authorized to work.

ICE’s 2014 Investigation of Broetje Orchards

However, in the summer of 2014, ICE returned to Broetje Orchards with another NOI. According to Donald Buechner, Section Chief of Worksite Enforcement of ICE, this is becoming a more common event when an employer has previously had a high percentage of employees listed on the NSD. The 2014 NOI revealed nearly 950 of the company’s employees were suspected of not being authorized to work in the United States. Many of these employees were the same employees previously listed on the 2012 NSD.

Broetje Orchards Settles with ICE

Under the settlement agreement, Broetje Orchards acknowledged that it continued to employ unauthorized workers after being advised by ICE those employees did not have permission to work in the United States. Broetje Orchards did not admit to any criminal wrongdoing. On paying the fine, Broetje Orchards will be fully released from any further civil or criminal liability associated with conduct alleged by ICE to date.

In dueling press releases, Raphael Sanchez, ICE’s chief counsel in Seattle, stated “We believe this is a reasonable conclusion that holds this business accountable, but does not cripple its ability to provide jobs to lawful workers.” In a company news release, Broetje Orchards stated “This case nevertheless highlights what is clearly a dysfunctional and broken immigration system. The agricultural labor shortage needs to be fixed, and now.”

Prior ICE Investigation of Washington State Agricultural Entities

This is not the first time that ICE has investigated agricultural entities in the State of Washington. In 2012, HerbCo International, Inc., a Washington-based supplier of organic herbs, pleaded guilty to felony offenses of harboring, concealing, and shielding undocumented workers and was sentenced to a criminal fine of $1 million and five years’ probation. Their three executives pleaded guilty to a misdemeanor, aiding and abetting a pattern or practice of employing undocumented workers, and were sentenced to one year probation. In that case, HerbCo discharged and quickly rehired a number of employees who had been identified by ICE as without proper work authorization. Company executives did this after informing ICE that they had discharged all their undocumented workers identified in the ICE audit.

In a 2013 NOI of Crunch Pak, located in Cashmere, Washington, where it packages apple slices, ICE found hundreds of workers had suspect documents and were given the opportunity to produce documents showing they can work in the United States legally. Since there was no further publicity on this matter, Crunch Pak apparently discharged all employees who were not able to provide appropriate work authorization documents.

Takeaways

The payment of $2.25 million by Broetje Orchards is just another example of ICE seeking larger and larger fines on employers who continue to employ undocumented workers even when it notifies ICE that the employees have been terminated. Given the deception practiced by Broetje Orchards, it is lucky that the company and its management officials were not criminally prosecuted as was the case in HerbCo.

Clearly, when ICE identifies employees with “suspect documents” and those employees cannot produce appropriate documentation, a company must discharge those employees and not retain or rehire them.

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Bruce E. Buchanan is an Attorney at the Nashville and Atlanta Offices of Siskind Susser, P.C. He represents individuals and employers in all aspects of immigration law, with an emphasis on employer immigration compliance, as well as employers in employment/labor law matters. He is Past-Chair of the Tennessee Bar Association’s Immigration Law Section from 2011 to 2012 and has been the editor of the TBA’s Immigration Law Section Newsletter and the TBA’s Labor and Employment Law Section Newsletter since 2009. Mr. Buchanan also serves on the Board of Directors for the Nashville International Center for Empowerment (NICE) and the United Cerebral Palsy of Middle Tennessee and Middle Tennessee Seminole Club. He is an associate member of the Mid-Tennessee Chapter of the Associated Builders & Contractors (ABC).