It is important for businesses to properly check the immigration status of all workers and to maintain records establishing steps taken to confirm workers’ status and eligibility to work in the U.S. The firm recently represented a business charged with serious felony criminal offenses as a result of its failure to do proper background checks and resultantly employ illegal, undocumented workers.
Gregory Ryan and Irwin Rochman of the firm represented the owner of restaurants located in Arkansas and Missouri, who had been indicted by a Federal Grand Jury in the state of Arkansas and charged with violations of Federal immigration law. The charges included allegations that the business owner harbored, concealed and transported illegal aliens, as well as employ them, in violation of the Immigration and Nationality Act.
After extensive plea negotiations with the prosecutors’ office, the firm was able to successfully argue that the client should receive probation rather than the possible 18 months in prison which he faced for the charges. The firm used the “rare and usually unsuccessful argument” that the client should not receive jail time because, while he was guilty of harboring aliens, he did not transport or conceal them, according to Irwin Rochman. Moreover, they argued that even if he did transport and conceal these workers, the client “did not benefit and did not expect to benefit from harboring, concealing, or transporting aliens.”
With this argument, the firm was able to convince the Chief Judge of the United States District Court for the Western District of Arkansas to sentence the client to probation rather than prison time.
The success of the argument before the Court and the fact that he was sentenced to probation rather than prison time garnered national attention. The case and result was the topic of a published report in the Bureau of National Affairs .
At the sentencing hearing in Harrison, Arkansas, the firm was able to convince the Court that the client had treated the employees in a fair and decent manner and that he did not take unfair advantage of them or personally benefit from his actions. In fact, Gregory Ryan told the Bureau of National Affairs in an interview that while the firm was pleased with the verdict, he was “upset” with how the client had been portrayed by ICE. “ICE mischaracterized” the situation by stating that the defendant had “exploited workers,” Ryan said, when in fact, he had “treated them decently.”
Ryan went on to clarify that “If you look at interviews from the employees, they show that employees were free to [come and] go to [as they pleased]” adding that, the workers also were paid more than the minimum wage.
According to Ryan, the restaurateur had hired the undocumented workers because of a lack of qualified chefs in the area, not because he wanted to pay lower wages. He “needed people who could do those jobs and were skilled in those jobs,” according to Ryan. “If you look around the neighborhood there were not many Chinese chefs,” he said.
The District Court Judge acknowledged Ryan’s point, noting that the defendant was “well intentioned” toward the workers.
Tesser, Ryan & Rochman, LLP serves as outside general counsel to businesses and advises the businesses on employment law matters, including advice on hiring practices.