The Iceman Cometh 

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Spanish translation by Larry and Ana Maria Mease

Alejandro couldn’t have been all that surprised when on the afternoon of Monday, June 9, his employer, Sun Valley Floral Farms, told him not to come to work the next day. The flower growers had received a letter from Immigration and Customs Enforcement (ICE) a week earlier identifying 283 workers on its payroll suspected of being undocumented.

It wasn’t the first time, the soft-spoken Alejandro told the Journalin Spanish on a recent weekend afternoon, that Sun Valley had told him to stay away from work because of his fraudulent identification papers. Two years ago approximately 300 undocumented Sun Valley employees were warned by the company to stay home because la Migra was coming the next day, he said. They were also told to get new social security cards. After immigration had come and gone, the employees returned to the farm. Within 15 days, Alejandro was the proud owner of a new social security number.

The heads-up and the day on the lam are just part of the uncertain terrain undocumented workers in California’s agricultural industry must navigate. Regardless, Alejandro was grateful for his relatively good-paying job, the modicum of benefits he received and the chance to work indoors.

The recent layoffs at Sun Valley speak to another uncertain reality: doing business in a country that lacks a comprehensive immigration policy. The layoffs raise important questions: Can California growers make do without undocumented labor, and how much do employers actually know about the status of their employees? The fact that Sun Valley let go half its workforce in the span of a week without making much of a stink about it may indicate that the company knew more than it is letting on about the work status of many of its workers, and that the time had finally come for it to swallow a bitter pill.

Last week, the company denied any prior knowledge that its employees were undocumented. “Sun Valley has always and will always comply with federal employment law,” a spokesperson wrote in response to questions from the Journal.

Alejandro, whose name has been changed to protect his identity, is just one of the 283 employees. But his story is a common one. He entered the United States long after this country offered undocumented workers amnesty in 1986. He paid a coyote, or human smuggler, $1,000 to lead him across the border. It was a grueling two-day trip on foot. Eventually Alejandro made his way to Humboldt County. A few years later he returned to his hometown to bring his wife north. In the meantime, prices for crossing the border had gone up. The newlywed couple forked over $3,000 this time. Alejandro got a job at Sun Valley Floral Farms planting bulbs and his children were born on this side of la frontera. They speak English and are being educated in local schools.

At this point, though, the family’s future is uncertain: After receiving his final paycheck from Sun Valley on June 9, Alejandro managed to find temporary work, but he’s worried that when winter comes, bringing the rain with it, he may have to take his family elsewhere in search of a new job, the Central Valley perhaps or even back to Mexico.

“We’re going to go wherever we can find jobs,” he said, “in the Central Valley, down south or in Mexico. We’re hoping that we can find work here in order for our kids to be able to stay here longer, because they’re so little, and if we return to Mexico they’ll lose their English.”

Alejandro said that many of the recently laid-off Sun Valley employees have already headed south to Bakersfield to work as seasonal laborers in the orange groves. Some — the few who are single — may continue south to Mexico. But the majority of the 283 former employees, who, Alejandro says, have families, will remain in California, hoping to find work, possibly even at the bulb farm again.

But with Sun Valley now squarely in ICE’s crosshairs, the company claims to be scrutinizing its new hires more carefully to ensure they’re actually documented this time. The possibility, therefore, of former, undocumented employees returning to the farm — unless there are radical changes made to U.S. immigration policy in the near future — seems highly unlikely.

The Wednesday after the big layoff, a handful of potential new-hires were gathered at the entrance to the bulb farm in the Arcata Bottoms. The elderly guard at the security checkpoint even handed me an application, as two awkward-looking high school kids walked away from the kiosk, clutching sheets of paper. Behind them, a strong wind whipped plastic against the nearby greenhouses.

I had come to see how the bulb farm was managing after what CEO Lane DeVries had described to the Times-Standard as an event akin to a “neutron bomb hitting our company.” But to an outside observer things seemed far from apocalyptic. As I sat and waited near the front desk beneath a huge poster of hundreds of different varieties of the company’s most popular flowers, with names like Yoko’s Dream, smiling employees fluttered in and out of the room.

When I finally met with DeVries in his office, I asked him to show me a part of the operation that had been seriously affected by the cataclysmic halving of his workforce, but he told me that nothing, as of yet, had come to a standstill. Sun Valley is picking flowers and sending out orders, he said. “You switch into war mode,” he explained. “We’re not the type of folks who drop with the first challenge that hits us.”

And Sun Valley seems adamant about not losing a similar chunk of its workforce ever again. Since receiving ICE’s Notice of Suspect Documents — a letter informing the company that a large portion of its employees were suspected of having used fraudulent identification numbers when filling out their I-9 employment eligibility forms — Sun Valley has pledged to be more vigilant about vetting its new employees using the government’s E-Verify system. That system — which relies on Social Security Administration (SSA) and Department of Homeland Security (DHS) records — allows employers to double-check a person’s work status before hiring him. That’s something ICE — a meaner, higher-tech incarnation of the Immigration and Naturalization Services (INS) and the largest investigative arm of the monolithic DHS, according to their Website — is no doubt happy to see.

But immigrant advocacy groups like the National Immigration Law Center (NILC) in Los Angeles aren’t so pleased. Nora Preciado, an NILC employment policy attorney, cited a new U.S Government Accountability Office (GAO) report when we spoke recently that highlights some problematic aspects of the E-Verify system. Released on June 10, just one day after the Sun Valley layoff, the report found that about 92 percent of the E-Verify queries confirm that the employee is authorized to work, leaving around 8 percent of employees whose work authorization status cannot be determined immediately. According to the GAO report, the majority of “erroneous tentative nonconfirmations” occur because of a lack of up-to-date information in the SSA’s database. The NILC worries that such misinformation will lead to discriminatory hiring practices. They’re also concerned that employers will abuse E-Verify by using it to vet employees who are already on their payroll, which is illegal.

It may also speak to the fact that when employers become enforcers of immigration policy — a sea change from the ways things have been conducted in the past — a little knowledge may turn out to be a very dangerous thing. Take for example the Notice of Suspect Documents Sun Valley received from ICE. Various immigration lawyers the Journal consulted with for this story suggested that the company may have acted too quickly on the information they received. Even ICE spokesperson Virginia Kice admitted, “There can be mistakes in the database.” That’s why, according to Preciado, “safeguards” are built into the process to protect documented workers who fall through cracks in the system.

The Journal was unable to obtain a copy of the letter, but I got a chance to read it. The final paragraph informs the employer that if he suspects that ICE has made any mistakes in identifying workers as undocumented, it’s his responsibility to contact ICE and clarify any discrepancies. “We make it explicitly clear to the employer that they should come forward if there are any discrepancies,” Kice said. According to DeVries, Sun Valley did not contact ICE about any perceived discrepancies with regards to the work authorization status of the 283 employees before issuing them their final paychecks on Monday, June 9.

DeVries called the situation a catch-22: “What you’re dealing with right now is you have been notified that you are in violation of the law, now, knowingly, as this letter states, employing people who are not eligible to work in the United States, therefore you put yourself in jeopardy.”

However, Preciado says that employers actually have a little wiggle room — if, that is, they think some of their workers have been misidentified as undocumented. “Usually if there is a large number of people,” she explained, “they can renegotiate the deadline the employer has to identify the workers [with ICE].” If the employer doesn’t give his employees enough time to clear up any discrepancies in their work authorization status, “it could amount to an unfair immigration-related employment practice,” she said. In short, if you fire a worker for being undocumented, but he turns out to actually be documented, that’s discrimination. According to DeVries there were three employees who came back to work on Tuesday to contest their supposedly undocumented status. At the time of our interview, those employees were not being paid while their eligibility to work was under investigation, DeVries said.

The Sun Valley CEO insists that his employment practices are completely fair because what happened at his farm the week of June 9 — in contrast to what has been reported by the press — was not a mass layoff. He told the Journalthat the workers were given their final paychecks but not technically terminated. This would seem to be a semantic way of avoiding any potential discrimination claims on the part of employees. Still, Preciado explained, “They can call it whatever they want but that can amount to constructive termination.” Workers who feel they have been discriminated against should contact the worker’s hotline at the Office of Special Counsel for Immigration-Related Unfair Employment Practices at the Department of Justice, or the NILC.

DeVries stands by his decision to let go of the 283 workers in the time frame he did based on the advice he received from his legal council.

“I don’t want there to be a misconception that we are trigger-happy,” he said, “that we were happy to get rid of 283 people. This is something that has taken some strong consideration and some heavy discussions with our attorneys, and they have made it crystal, crystal clear that we had no option.”

Gregory Wald, an immigration attorney with Squire, Sanders & Dempsey in San Francisco and an executive board member of the Northern California Chapter of the American Immigration Lawyers Association, told the Journalrecently that ICE has been ramping up its worksite enforcement over the past couple of years. (The Journalwas unable to consult with a local immigration lawyer for this story because there aren’t any.) The reality, according to Wald, is that there is no playbook for employers to consult when it comes to responding to letters like the one Sun Valley received. Still, one thing is certain, the employer has to take some action: “The question is what is the appropriate action?” he said. “What this underscores is that we really don’t have a good system in place where employers — who wish to do the right thing — can do the right thing, when it comes to the employment of aliens in their workforce.”

“What’s happening to us today,” DeVries said, “is clearly not the way to do it.” He supports a comprehensive national immigration policy like the one promulgated by U.S. Senator Dianne Feinstein. Like Feinstein, DeVries does not think that employer sanctions are the best way to solve the problem. He told the Journalthat in addition to trying to fill jobs immediately at Sun Valley with local high school students, in the long run he’s looking into the H-2A agricultural guest worker program. But that program, bogged down in red tape, needs major reworking, argues Feinstein. It only provides 30,000 to 40,000 of the country’s nearly 2.5 million agricultural workers, 1.5 million of whom are undocumented.

According to datafrom the Employment Development Department, there were 1,300 agricultural jobs in Humboldt County in April 2008. That number plummeted over 20 percent as a result of ICE’s recent worksite enforcement action at Sun Valley.

But Humboldt State University Economics professor Steve Hackett predicts that the local economic impact of the lost jobs will only be temporary. “It’s reasonable to assume that it’s going to be a transitory impact until those positions are filled,” he told the Journalrecently. Whether there are enough documented workers to fill those positions or not is still uncertain. Hackett speculates that in the long run, if what we’re seeing reflects “a new regime where the policing of our labor force is more stringent, then you would expect Sun Valley’s labor costs to go up.”

One must also consider the impact the layoffs will have on local immigrant families. “It’s very sad for everyone,” DeVries told the Journal on the evening of Monday, June 9. “These people bought houses, bought cars, spent money at the Bayshore Mall. This is not good for this community.”

On Friday, June 13, a group of around 30 people, including local public health and community service providers as well as educators, gathered at the Community Wellness Center in Eureka to discuss ways of helping the affected families. It’s something that the nonprofit LatinoNet does frequently — disseminate information about free medical care as well as educational and advancement opportunities to the local Latino community — but on Friday, the meeting had a palpable sense of urgency to it. People were concerned that the Latino community would go into hiding, the same way it had when there were immigration raids a year ago in Fortuna.

“What happened last year when immigration came in [to Fortuna] is that the people in need didn’t seek out the services they needed,” said Monica Rivera, a LatinoNet board member and the director of the Newcomer Center at the Eureka Adult School. “There are people obviously affected — they have rent, food to buy, children. My concern is that they’re not going to seek out the food bank and public health and other agencies.”

A woman from the food bank pointed out that families with U.S.-born children can get food stamps without the parents being asked about their documented status, But the biggest problem is getting them through the door in the first place, and convincing them that whatever personal information they provide won’t be passed along to immigration.

Someone suggested asking Sun Valley to send out a packet of information about local resources to its former employees. Others wondered if that was appropriate. La Nueva, the Spanish-language radio station in Fortuna, was mentioned as the best way to communicate with the Latino community. La Nueva was the first public forum workers turned to to air their concerns about the recent layoffs. As early as Friday, June 6, the radio station’s general manager Mario Meza was getting anonymous phone calls from concerned Sun Valley employees. “Some people are talking about leaving the area,” he told the Journal the Tuesday after the layoffs. “Some other people are taking it easy.” Some, he said, don’t believe it was an immigration issue. “They think it was a scam from the company to hire new people at lower wages.”

Misinformation, conjecture and confusion have marked the recent Sun Valley layoffs. This is due in large part to the fact that the undocumented portion of Humboldt’s Latino community is understandably silent, but it’s also because the Latino community in general here — some 20,000 strong — lacks an organizational hub, a clearinghouse for news and information.

When I first got in touch with Monica Rivera at the Newcomer Center before the Sun Valley story broke in the local papers, she hadn’t heard a word about the layoffs. Nor had Manos Unidos, a Latino advocacy group in Del Norte County, where some of the affected Sun Valley employees worked. A representative from Mike Thompson’s office at the LatinoNet meeting was unsure exactly what kind of letter Sun Valley had received from ICE, nor could she say with any certainty whether or not ICE would come knocking door-to-door at the homes of the recently laid-off workers. (The immigration-related “layoffs,” according to Thompson’s office, are the first of their kind in District One). Even ICE could not go on the record with specifics about Sun Valley — personnel could only speak in generalities.

In this sort of an environment, it’s no wonder that some workers are questioning their former employer’s true motives. “I think they wanted to save money because of the bad state of the economy,” Alejandro said, “because lately they were also getting rid of a lot of our benefits. Before the company used to give us everything we needed: overalls, work gloves, safety goggles, rubber boots — but starting this year, they took that all away from us. We had to buy them ourselves.” These changes affected all employees, he said, the documented and undocumented alike. (In a written statement, Sun Valley denied these allegations. “Sun Valley provides each of its team members with the proper safety equipment required by OSHA [the Occupational Safety and Health Administration].”)

Still, Alejandro complained that the treatment by Sun Valley of these two separate groups of employees was not in fact equal: “It’s always been that legal workers have more benefits than undocumented workers,” he said. “Because they have more rights, they’re treated more fairly. They make more and work less.”

ICE spokesperson Virginia Kice would not “speculate about [the] next steps” her agency would take with regards to Sun Valley, but she did say, “Our priority in workforce investigations is to determine whether any criminal violations have taken place and pursuing those who were responsible if they did.” That may involve the company itself or it may not. As a haggard-looking Lane DeVries told the Journalabout his flower farm’s prospects for pulling through their recent ordeal, “Time will tell.”