(Feb. 9) Labor, its cost and availability, is a major concern for growers and packers throughout the U.S., and those that knowingly use illegal immigrant laborers could face racketeering charges.

The most important factor affecting the cost and availability of agricultural labor, said Dan Bremer, owner of AgWorks Inc., Lake Park, Ga., is U.S. immigration law.

Bremer said as many as 90% of the workers in U.S. agriculture are here illegally. Agricultural employers have known for some time that there are penalties for hiring undocumented workers, but court-imposed costs and inconvenience have not yet been enough to rein in the problem. Recent actions against U.S. employers using undocumented labor suggest those times may be changing.

VIOLATION OF RICO

One attorney who specializes in class-action racketeering lawsuits said that companies break federal racketeering laws by hiring illegal immigrants.

Howard Foster, an attorney with Johnson & Bell Ltd., Chicago, has filed several lawsuits claiming that when an employer hires undocumented workers on a consistent basis and with full knowledge that those employees are in the U.S. illegally, that company violates the Racketeer Influenced and Corrupt Organizations Act, commonly called RICO.

RICO is a part of the Organized Crime Control Act of 1970. In addition to providing a wider-cast net for trapping employers that use undocumented workers, RICO cases grant triple damage awards for criminal acts performed as part of an ongoing illegal operation. Foster has filed suit against four companies from various industries, including apple grower-shipper Zirkle Fruit Co., Selah, Wash. Officers at Zirkle Fruit could not be reached for comment.

Lower courts initially dismissed several of the early RICO charges, but appellate courts have recently reinstated three of the RICO charges. While immigration lawsuits in federal courts are nothing new, the allegation of participating in RICO activities does not have to be instigated by a federal agency.

UNFAIR ADVANTAGE

Foster said the lawsuit in New York was brought by one firm against a competitor, alleging that the use of illegal, low-cost labor gave the defendant an unfair price advantage over the plaintiff’s firm.

Brian Breaux, assistant commodity director of the Louisiana Farm Bureau Federation, Baton Rouge, said that some of the various congressional proposals addressing migrant labor issues, such as the AgJobs bill, could in fact exacerbate a conflict between competing grower/shippers if it were passed into law.

Breaux said growers who have been participating in the H-2A program for farm labor could be locked into paying the higher labor costs that program imposes.

Other growers using undocumented workers would be able to “adjust” their workers’ status under the proposed Agricultural Job Opportunity, Benefits and Security Act of 2003 without having to pay the adverse-effect wage rate imposed by the H-2A program. Breaux said the inadequacy between labor rates could mean that one grower would quickly have a price advantage over another grower in selling the same type of crop, without any recourse under the farm labor regulations.

Bremer said he believes that if the advantage were serious enough, a competitor might just be tempted to investigate the federal racketeering statutes as a remedy.

When contacted, Western Growers, Irvine, Calif., and the United Fresh Fruit & Vegetable Association, Washington, D.C., said they had neither crafted a policy or position on the issue.