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Friday, December 11, 2009

The Bad Hire Decision










Reprint Opelika Auburn News December 13, 2009
Alabama@Work
By: Tommy Eden, Attorney

Sometimes a bad hire decision can result in poor morale, an EEOC charge, a workplace injury, or in the case of former Howard Industries, Inc. HR Manager Jose Humberto Gonzalez, prison time. On December 9, 2009 Gonzalez pleaded guilty to one count of conspiracy to hire illegal immigrants in the United States Federal Courthouse in Hattiesburg, Miss. He was initially indicted on 24 counts of conspiracy and employee verification fraud in April 2009 following the August 25, 2008 U.S. Immigration and Customs Enforcement (ICE) raid at the Laurel, Miss. plant and Ellisville headquarters of Howard Industries, Inc. ICE reported it was the largest workplace raid of illegal immigrants in U.S. history with 595 arrested, nine were charged criminally with aggravated identity theft and pled guilty and many of the others left the United States. Gonzalez could receive up to five years in prison and be fined $250,000 when he returns to federal court in March 2010 for sentencing.

The April 2009 Federal Court indictment charged Gonzalez with: 1) encouraging illegal aliens to reside in the United States; 2) attempting to conceal and harbor illegal aliens; 3) falsely attesting to the validity of employment-related documents; 4) routinely hiring illegal aliens and in the process of hiring such would accept false identity documents, including alien registration receipt cards and Social Security Cards; 5) after being notified by the Social Security Administration that the Social Security numbers of certain applicants were not found to be valid, Gonzalez would nonetheless hire and continue to employ such persons; 6) would instruct employees to obtain alternative identity documents which he knew falsely represented their true identities; 7) would assure Spanish-speaking foreign nationals working at the Laurel plant that they would be warned if immigration authorities were coming to the plant; 8) falsely certifying to the employment eligibility of job applicants and employees; and 9) falsely certifying, under penalty of perjury, on Form I-9 Employment Eligibility Verifications that he had examined the documents listed on the Form I-9 and determined them to be genuine and that, to the best of his knowledge, the applicant was eligible to work in the United States, whereas in fact he had been notified by the Social Security Administration that the Social Security numbers of such applicants were not found to be valid.

Common Sense Counsel: The steps Alabama HR Managers should take to avoid their own Bad Hire Decision is best expressed in a statement by the President of Howard Industries following Gonzalez’s plea hearing. “Since before the worksite investigation, Howard Industries had taken the following immigration compliance steps:” 1) “even before it was mandated, the company voluntarily participated in identification-verification systems, whereby the federal government checked the information maintained in the government’s databases” (E-Verify) 2) “implemented a fingerprint identification system to prevent the use of false identities” and 3) “the company also retained outside legal counsel to review all of the company’s human resource processes and procedures to insure they meet or exceed all immigration compliance legal requirements.”


Tommy Eden is a Lee County native, an attorney with the local office of Constangy, Brooks & Smith, LLP and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com