The raid of six Swift & Co. meat packing plants last week spotlighted the fine line employers face because of increased government scrutiny: Make sure your employees are in the U.S. legally, but don't push too hard to find out.
This time, federal inspectors detained 1,300 Swift workers suspected of providing stolen Social Security numbers to the company. But four years ago, the company's requirement that Latino job applicants provide proof of their legal status led to a $200,000 fine for discrimination.
"Employers are very much hamstrung -- if they go too far, they run the risk of a discrimination lawsuit," said David J. Ceccanecchio, an attorney for Wolf Block in Philadelphia who advises businesses that hire immigrants. "If they accept documents at face value, they run the risk" of becoming targets of stepped-up federal enforcement of immigration laws.
In the last year, the federal government has arrested 716 individuals for employing illegal immigrants, compared with 25 in 2002. In addition to the Swift raids last week, a Southern California fence-building company was fined $5 million for employing illegal immigrants, and two Florida men were each sentenced to more than four years in prison for "leasing" illegal workers to various companies.
At a news conference in Washington on Wednesday, Homeland Security Secretary Michael Chertoff emphasized the importance of focusing on workplaces.
"We all know the primary economic engine that draws in illegal migration is work," Chertoff said a day after the Swift raids. "And when businesses are built upon systemic violations of the law ... that is a problem we have to attack."
Some observers say that attack has changed the dynamic at workplaces nationwide, leading employers to worry more about becoming targets of immigration raids than of anti-discrimination suits.
"There was more of a balance before," said immigration attorney Elena Park of the firm Cozen O'Connor. Federal law requires businesses to have job applicants fill out an I-9 form and to verify that the person can legally work in the United States by checking documents -- usually a Social Security card and photo identification. But employers are prohibited from asking for additional documentation to prove legal residency.
"All the I-9s say in big, bold letters that the employee chooses what ID to show you, and if you ask for more, you can be sued for discrimination," said Angelo Amador, director of immigration policy for the U.S. Chamber of Commerce.
Unless the documents appear to be forged, employers must accept them and verify Social Security numbers with the Social Security Administration -- a process that can take months.
Even if employers receive a "no-match" warning that workers' identities don't correspond to their Social Security numbers, their next move is a matter of dispute.
In June, the Department of Homeland Security issued a proposed rule that companies give workers 60 days to resolve discrepancies in their Social Security records. But the Equal Employment Opportunity Commission warned that the proposal could lead businesses to violate nondiscrimination laws, and the rule has not been adopted.
The Cincinnati clothing manufacturer Cintas Corp., which employs 32,000 people nationwide, this fall began to require its workers to resolve discrepancies within 63 days or be placed on unpaid leave. Religious leaders and unions trying to organize Cintas workers protested, and Rep. Bennie Thompson (D-Miss.), incoming chair of the House Committee on Homeland Security, warned the company in a letter last month that it may be violating anti-discrimination laws.
Cintas said its new policy was unrelated to the proposed Homeland Security rule. "It got changed this year to ensure that we're in compliance with the law and that our employees are eligible to work in the United States," said spokesman Mike Wallner. Employees can resume work after they resolve the matter with the Social Security Administration, he said.
Cintas is not the only company to take such a step. Last month, Smithfield Foods Inc. fired a few dozen workers at a Tar Heel, N.C., slaughtering plant who had received "no-match" letters. A thousand workers walked off the job in protest, and Smithfield rehired the dismissed laborers, giving them time to resolve the problem.
Labor groups contended that Smithfield, which a federal court ruled in May had harassed union backers, was trying to stifle organizing drives. But Smithfield officials said they were simply trying to do the right thing.
"We're getting battered from both sides," spokesman Dennis Pittman said. "We're just trying to figure out the law and follow it."
Legal experts say the anti-discrimination clauses exist to protect would-be employees often subject to the most scrutiny: low-income people with few documents.
"If an employer asks you to prove you're here legally, what would you bring to the employer" other than a Social Security card? asked Keith Cunningham-Parmeter, a law professor at Willamette University in Salem, Ore. "A passport? Those are the sort of things that low-wage workers don't necessarily have in their desk drawer."
Immigrant rights groups that warn of the dangers of employers aggressively questioning their workers have long pointed to the employment discrimination case the Department of Justice filed against Swift in 2002.
The complaint says that, since 1990, Swift's Worthington, Minn., plant requested extra proof of legal residence from job applicants "perceived to be non-U.S. citizens or foreign-born."
Arcenio Martinez applied for a job at the plant in 2000. A legal U.S. resident, he was asked to show a Social Security card and a work permit -- more than was requested from non-Latinoappearing applicants, the complaint says. Even though he produced both documents, Martinez was not hired. Another applicant, a U.S. citizen who did not speak English, was asked for a birth certificate, driver's license and Social Security card before he was hired.
The federal government sought $2.5 million from Swift but settled for $200,000. Nonetheless, in a release, the Justice Department called it the largest employment discrimination case based on immigration status in history.
"Anyone who is entitled to work should be treated equally and without discrimination in the employment market," Assistant Atty. Gen. for Civil Rights Ralph F. Boyd Jr. said in a statement.
In testimony before the House Small Business Committee in June, Jack Shandey, Swift senior vice president for human resources, cited the case to highlight what he called contradictory government expectations of business. "To repeat, our company found itself in hot water for allegedly pushing too hard to ensure employees possessed the status they claimed," he said.
Now Swift is feeling pressure from another source.
The company since 1999 has used a federal online system, called Basic Pilot, for speedy verification of its workers' Social Security numbers. But Immigration and Customs Enforcement agents found that many Swift plant employees were using stolen Social Security numbers that were not flagged by that system.
Chertoff said investigators advised Swift about the case and about the pending raid of the company's plants. The company interviewed suspected workers, and about 400 were dismissed, quit or did not show up for work. It also asked a federal judge in Texas to bar Immigration and Customs from raiding its plants. The judge refused, and the raids went ahead Tuesday.
Swift did not return repeated calls but has argued that it has been obeying the law.