Michael S. Powers

Michael S. Powers Associate

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Tree Service Agrees to Largest Ever Settlement for Hiring Unauthorized Workers

The name Asplundh is synonymous with the orange trucks seen in communities throughout the United States performing various tree and vegetation management services.  In fact, the Philadelphia-based company is one of the nation’s largest privately owned companies, with annual revenues of $3.5 billion.  Asplundh employs over 30,000 individuals throughout the U.S., as well as in Canada, Australia, and New Zealand.  The Company recently agreed to the largest ever settlement, $95 million, for having hired individuals who were not eligible to work in the U.S.  The conduct covered by the settlement allegedly took place between 2010 and 2014.

The story started in 2009, when Homeland Security Investigations (“HSI”), a division of the United States Immigrations and Customs Enforcement (“ICE”), began a compliance audit to determine whether Asplundh was compliant with federal immigration employment laws.  HSI/ICE then gave the company a list of employees’ who were ineligible to work in the U.S.  Asplundh fired hundreds of unauthorized workers and many more quit before they could be fired.  At that point Asplundh had complied with HSI/ICE’s demand, and for the moment, all was well.  It is what came next that eventually caused the Company so many problems.

Immediately after the Company culled its staff of the workers identified by ICE, it began to rehire many of the same workers, who were using fraudulent documentation.  The Company also failed to increase its scrutiny of new hires, so it was both hiring new illegal workers and rehiring many of those who left in the wake of the 2009 audit.  Because the workers would offer illegally obtained social security numbers, those numbers would result in positive matches when they were submitted for E-Verify pre-employment screening.  In fact, at least one of Asplundh’s regional managers has been found guilty of instructing his managers that they had plausible deniability in rehiring illegal workers for exactly that reason.  He now faces a possible sentence of up to ten years in prison and up to a half-million dollar fine.

ICE accused the Company’s management of being willfully blind and purposefully ignoring the illegal activity in order to continue employing illegal immigrants.  It also took issue with the Company’s policies and procedures which were designed to minimize scrutiny rather than to maximize compliance.  ICE argued that the Company was not merely lax or negligent, but rather the Company’s policies with regards to hiring illegal workers were intentionally ineffective.

For its part, Asplundh has accepted responsibility for the alleged conduct.  Public acknowledgement and acceptance of responsibility is often required by U.S. government agencies as a part of their settlement requirements.  The Company stated that the activity in question was in the past and that they have now taken extensive corrective measures to insure that these violations do not occur again.  These measures include increased immigration compliance personnel and the implementation of an I.D. card system that uses the same type of facial recognition software that ICE itself uses.

After the settlement, ICE released the following statement:

Today marks the end of a lengthy investigation by ICE Homeland Security Investigations into hiring violations committed by the highest levels of Asplundh’s organization. Today’s judgment sends a strong, clear message to employers who scheme to hire and retain a workforce of illegal immigrants: we will find you and hold you accountable. Violators who manipulate hiring laws are a pull factor for illegal immigration, and we will continue to take action to remove this magnet.

Compliance with federal immigration law is vital to all employers, but can be particularly onerous for employers in certain industries.  Arborists like Asplundh are included in that group.  Other industries that encounter a high incidence of unauthorized workers among applicants include construction, agriculture, meat packing, food manufacture and processing, as well as many other industries that employ temporary or seasonal labor.  Exposure to such applicants varies widely by geographical region as well.  The bottom line though is that for an employer to hire unauthorized workers, or even to look the other way in order to fill needs in its workforce, could be an extremely costly mistake.

The St. Louis employment attorneys at McMahon Berger have been representing employers across the country in labor and employment matters, including immigration matters and regulatory compliance, for over sixty years, and are available to discuss these issues and others.  As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation as every situation must be evaluated on its own facts. The choice of a lawyer is an important decision and should not be based solely on advertisements.

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