In this exclusive analysis of the successful class action law suit brought against the Selah WA-based Zirkle Fruit Company—which cravenly doesn`t have a website, but this is its marketing arm—VDARE.COM will expose the company and its officers for illegal behavior so craven that even hard-boiled observers like myself are taken aback.
Zirkle was so brazen in its preference for illegal aliens that by 2001 no more than 30 percent of the Zirkle workforce was legal.
When you read all the revolting facts, you will quickly understand why Zirkle threw in the towel. The truth, as you`ll soon learn, is far worse than you could imagine
Howard Foster, a Chicago lawyer, brought the case under an ingenious legal theory based upon the Racketeer Influenced and Corrupt Organizations Act—RICO. He sued Zirkle, and another local operation, the Matson Fruit Company, on behalf of legal workers, alleging that their wages had been depressed by the companies` "illegal immigrant hiring scheme."
(Brief and important facts about RICO: In 1996 when the GOP Congress passed immigration reform, several laws were affected, including the Racketeer Influenced and Corrupt Organizations Act. The RICO list of "predicate offenses" was amended to include violations of Section 274 of the Immigration and Nationality Act, which prohibits knowingly employing, harboring, or transporting illegal aliens. For the first time, it became possible for private citizens to sue for violations of the key provision of our immigration law.)
Foster was certain that, if the two fruit companies had complied with the law—that is, not hired illegal workers—his clients would have received wages that were at least 20 percent higher than what they were actually paid to sort and pack apples into boxes—$6.00 an hour, barely above minimum wage.
(The Matson case wasn`t certified as class action, and Foster subsequently dropped it.)
The local federal judge initially dismissed the Zirkle case. But Foster appealed the dismissal to the San Francisco-based Ninth Circuit Court of Appeals.
And the Ninth Circuit, perhaps aware of the studies of Harvard economist George Borjas that show the relationship between an immigrant workforce and wage depression, reversed the dismissal and ordered the case to proceed.
Very happily, this reversal established a precedent that can be used in similar cases throughout the country. [Mendoza v. Zirkle Fruit Co., 301 F.3d 1163, 9th Cir. 2002, for those of you who want to read it.]
Two weeks after the Ninth Circuit`s decision, Zirkle shamelessly placed a full-page ad in the Yakima Herald Tribune comparing Foster to the September 11th hijackers. Many Zirkle employees, all with Hispanic surnames, signed the ad. The signatories attested to the good faith of their employer and the soundness of the company`s hiring policies.
Zirkle`s smear notwithstanding, Foster`s first step was to take depositions of the apple companies` owners and human resources managers.
A crucially important figure in the case turned out to be Juana Castenada, a naturalized American citizen who holds a key position at Zirkle: she decides whether applicants are eligible for employment based upon the documents they submit.
Castenada, court filings reveal, has remarkable qualifications for her job. She herself entered the U.S. illegally. She obtained her job at the Zirkle with fake social security and green cards which she purchased in Yakima for $50.
It was then and is now a federal crime for Castenada to have used fake documents to obtain employment. And it`s another federal crime for Zirkle to have accepted such documents knowing they were fakes.
Let`s be realistic. It takes well over a decade to lawfully obtain a green card. Castenada had only been in the U.S. a relatively short period when she presented her "lawful permanent residency" and social security cards to Zirkle. She knew little if any English.
But, needless to say, the manner in which Castenada obtained her first job at Zirkle has not adversely affected her employment.
Castaneda, as it turns out, fit the typical profile of most of Zirkle`s hourly paid workers: often illiterate, Spanish-speaking and possessing shiny new green cards, sometimes issued to someone else with the original falsifier`s picture on the card.
One Zirkle employee familiar with the company`s scam said the documents were obviously falsified:
"I saw a whole bunch of them, they made at home, they took a photo, they sliced the plastic and put the photo in there… you look at the picture and it was somebody else`s picture…"
Among illegal alien employees bogus documents were borrowed, like a library book, for a fee often cheaper than the cost of the original purchase.
But no matter how obviously phony the documents, Zirkle hired all comers.
Even today at Zirkle, on the rare occasion that there is some question as to whether or not to hire an illegal alien applicant, the final decision rests with Castenada.
Castenada is now married to the company`s human resources director Gary Hudson. Despite her position in the company, her English is still rudimentary. She gave her deposition in Spanish, translated by an interpreter, while claiming that her actions were perfectly legal because she was simply following the orders of her superiors.
Zirkle has a long history of immigration law breaking. In the late 1990s, Zirkle`s hiring practices were so flagrantly offensive that even the usually inert Immigration and Naturalization Services took action.
After a raid on the company, the I.N.S. ordered Zirkle to fire over 100 workers.
Previously the I.N.S. would announce its "inspections" to area agricultural companies in advance. Supervisors would warn illegal aliens and, on inspection day, up to half the workforce would be "absent."
This happened so often at Matson Fruit Co. that it decided to skip the pretense and maintained two sets of employment documents, one for I.N.S. use, and another one for its own.
During discovery, Foster learned more sordid details:
70 percent of Zirkle`s warehouse and orchard workers were using social security numbers that were not issued to them; of those using Alien Registration Cards, 80 percent had someone else`s name.
The human resources department actively abetted the hiring of illegal aliens. Castaneda filled out I-9 forms— the one-page U.S. government document every employer must complete upon the hiring of each new worker—for new hires who in all likelihood could not read or write English. Both the employer and employee must sign under oath, subject to the penalties of perjury, that the worker has shown the employer documentation establishing his or her employment eligibility and identity. If the parties follow the law, the I-9 form will prevent the employment of illegal immigrants. But, as noted earlier, Castaneda gained employment at Zirkle in much the same fashion as she permitted hundred of others to do…by using false documentation.
The company`s office manager, Ms. Toni Jenft, pre-printed over several years thousands of I-9 forms, with the company`s signature affixed before any documents were examined, in flagrant violation of federal law. Although Jenft belatedly admitted doing so, she received no punishment and is still in her job.
Some orchard foremen perjured themselves in their depositions by denying the I-9 forms were pre-signed (a fact they later admitted to). Others could not understand the most basic concepts of the I-9 process, like what is "employment authorization?"
Ten days before the January 9, 2006 trail date, in an abrupt conclusion to the case, Zirkle agreed to pay $1.3 million to the small band of legally authorized workers. Significantly, it appears the cave-in was motivated by the publicity that the case was starting to receive.
Three courageous "class representatives", legal workers who agreed to be examples for their class, will receive $10,000 each for their years of struggle. Their sacrifices have not been painless, however. Two of the workers claim that they are now "blacklisted" by local agriculture firms.
Foster`s settlement sets a powerful precedent for future cases against employers like Tyson Foods, notorious for hiring illegal aliens.
And the Zirkle case has already sent shudders throughout the corporate community that hires and exploits aliens, as well as their lobbyists who promote illegal activity.
For example, Dianne Solis in the Dallas Morning News Dallas Morning News has reported that in April the U.S. Supreme Court is expected to hear a Georgia racketeering case against carpet giant Mohawk Industries Inc., regarding its employment practices and the possible use of illegal labor recruiters in Brownsville, TX.
Howard Foster will argue the case for the plaintiffs—four women who are suing as a class assert that Mohawk conspired to artificially and illegally depress wages by hiring illegal immigrants. (Illegal Labor Could Cost Firms in Court, February 14, 2006)
Mohawk, the nation`s second largest carpet manufacturer, employs about 32,000 people and reported over $6 billion in sales during 2004. The company denies any illegal conduct.
But the plaintiffs` co-counsel Bobby Lee Cook says Mohawk operates in a region known as the world`s carpet capital, and he estimates that nearly half the workers there are illegal immigrants.
Cook, one of the most prominent litigators in the South, said
"We are inundated by illegal workers."
Even the U.S. Chamber of Commerce, which filed a brief in support of Mohawk, is worried about the over-all impact on illegal alien hiring that Foster`s ground-breaking RICO work will have.
Said Amar Sarwal, general counsel of the National Litigation Center, the public policy law firm of the U.S. Chamber of Commerce:
"This case is about RICO, which was initially used to go after the mob, and now it is being expanded by smart plaintiff lawyers to go after employers who have nothing to do with the mob."
But Foster sees it differently. As he says:
"Congress fully intended to make illegal immigrant hiring a RICO violation when it reformed immigration in 1996."
Foster`s victory over Zirkle and the pending Supreme Court case against Mohawk ensure that many more RICO cases are yet to come.
And concerned citizens are on the prowl for companies that knowingly employ aliens.
An Internet watchdog site, WeHireAliens.Com, lists nearly 750 employers in forty states that hire aliens. The interactive site allows outraged Americans to post the names of companies like Zirkle when they violate immigration laws.
No matter where in the U.S. you may be reading this column, you are probably saying, "I know a business right here in town that would be a make a good RICO case."
In the Zirkle case, Foster has done a valiant deed, not only for the immigration reform community, but also for all Americans who are fed up to here with illegal immigration.
More triumphs are certainly on the way.
E-mail addresses for Zirkle Fruit and its key employees
Joe Guzzardi [email him], an instructor in English at the Lodi Adult School, has been writing a weekly newspaper column since 1988. This column is exclusive to VDARE.COM.