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Tree Care Company Pays Record Immigration Fine

Bryan Little, Farm Employers Labor Service

October 6, 2017

On Sept. 29, USA Today reported that Asplundh Tree Expert Co., whose orange trucks are a familiar sight in much of the country, pleaded guilty to federal criminal charges concerning their employment verification practices and was ordered to pay a $95 million fine, which prosecutors said was the largest monetary penalty ever levied in an immigration-related case.  Asplundh has enjoyed a thriving business for many years trimming and removing trees around utility lines.

Media reports concerning the case included few details about Asplundh's criminal actions, but prosecutors described their practices as allowing senior management to be "willfully blind" while lower-level supervisors hired workers they knew to be unauthorized to work in the U.S.  The audit of Asplundh, which reportedly began in 2009, had resulted in dismissal of workers found to be unauthorized to work who were rehired later using fraudulent forms of documentation.  Aside from the huge fine, a substantial portion of the $800 million in profit Asplundh earned during the period of the investigation, the company may also face debarment from tree care work for governmental entities who are said to be a significant part of the company's business. 

Asplundh's case illustrates the importance of a few key legal requirements and best hiring and management practices for employers:

1. Centralize hiring, or least the management of hiring processes: such centralization will allow you to be certain that immigration, discrimination, and notice requirements are administered correctly and in compliance with relevant laws and regulations; leaving field-level supervisors to figure it out for themselves can lead to inconsistent practices that can allow discriminatory conduct (even if unintentional) or management of the Form I-9 process that may be discriminatory (specifying documents, for example) or Forms I-9 that are incomplete or inaccurate.

2. Ensure staff who handling hiring and personnel practices are properly trained:  The hiring process includes several mandatory steps, including the Form I-9 process, completion of the W-4 form to ensure proper tax withholding, and a host of notifications, notices, and other requirements imposed by the State of California and the federal government.  Missing or mishandling any of these can be problematic and expensive.

3. Understand the proper balance between prudent, compliant document examination and document discrimination: federal law requires you and the employee to complete the Form I-9 after you offer and the employee accepts employment but before the employee actually begins work, though you have three business days to conclude the document examination requirement to complete Section 2 of the I-9.  You may not specify documents (i.e. "show me your mica or Green Card"); you are required to examine documents an employee offers you to confirm their identity and eligibility to work in the U.S.  Anti-discrimination laws require you to accept a document you are offered unless you have reason to believe it is not genuine or does not relate to the person presenting it.  You are not required to be a fraudulent document detective, nor are you permitted to not hire someone because you think they might be an illegal alien, or requiring that person to present a driver's license and a Social Security card for the same reason.

FELS offers a variety of immigration-related resources for employers on our website.