RICO and the Threat of Terror

Sept. 13, 2005
RICO of course provides for criminal penalties in the main, but also provides for civil sanctions, namely triple damages and attorney fees.

Remember RICO? The statute called Racketeer Influenced Corrupt Organizations Act (RICO 18 U.S.C. ss 961-1968). When the mobs were overrunning New York City, Chicago, and other big cities, the federals brought out this Act in order to go after the mobs. Its use was very successful in shutting down many mob operations in some big and small cities.

RICO of course provides for criminal penalties in the main, but also provides for civil sanctions, namely triple damages and attorney fees. The statute requires that (1) the defendant violated the RICO by participating in a pattern of racketeering activity through its association with an enterprise affecting interstate commerce; (2) that the plaintiffs sustained an injury to their business or property; (3) and the violation of the law caused the injury.

In 1996 Congress expanded the scope of RICO to include violations of the federal immigration laws.

A recent news article described how some imaginative lawyers have come up with a new use for RICO. They have devised a theory that will allow them to sue the employers of undocumented workers. We all know that there are laws on the books to sanction employers for hiring undocumented workers but we also know that they are rarely enforced with any vigor by the federal government. The lawyers say now it may be possible to hit these employers where it will hurt them most . . . in their pocketbook.

Some plaintiffs will be local governments that have been unsuccessful in getting help from the federal government to fund the costs of taking care of the influx of the undocumented in their jurisdictions. It seems to me that there could also be citizen plaintiffs as well as governmental litigants in the mix.

One theory is that there is a pattern of immigration violations that is costing local and state governments (the taxpayers) millions of dollars in law enforcement, education, medical, and various other social services. This in turn reflects in the taxes that are needed from local residents to support these services. The theory is that if there was no employment lure for the undocumented they would stay in their own countries. Unfortunately, that is not the case now. Employers don’t mind breaking a law that is not enforced in order to get a cheap labor source.

There was no prohibition in the law against simple employment of undocumented employees until the enactment of the Immigration Reform and Control Act of 1986 (IRCA). However, the Immigration and Naturalization Act of 1952 (INA274) made it a felony to encourage a noncitizen to enter or reside in the United States knowing that the entry or presence will violate our law, or to harbor or conceal such a person knowing his or her entry or presence has violated our law. This law also includes employers who hire at least 10 noncitizens in a year knowing that they were unauthorized to work.

So much for the laws.

Ours is a world of manufacturing and other service jobs. In the aircraft maintenance business there are many more surveillance efforts in place to exclude any potential security risks in the employment pool. There would appear to be little threat from an undocumented person working in a meat packing plant, farmer’s field, or a car wash, but it is a little risky to have such persons working on aircraft. You may have read that Tyson Foods was recently hit with a noteworthy verdict for just such conduct although it did not include a security risk.

Employers must now give serious consideration to the possibility of a RICO lawsuit in the case of hiring undocumented workers and must weigh the benefits and drawbacks. Plaintiffs can include the workers themselves (in the case of substandard wages), the company’s competitors and their employees and the usual governmental entities that have to provide various social services.

Outsourcing threats

Even though there is supposed to be more surveillance in the aviation business, we have read recent accounts of some undocumented persons employed by independent aircraft maintenance facilities. A recent immigration sweep at one facility found undocumented non-citizens working on air carrier aircraft with some even holding A&P certificates issued by the FAA. This of course got the Homeland Defense and FBI people involved to look into this obvious threat.

It does not take much imagination to consider what a person bent on doing harm could do in this situation. Some say at least 50 percent of our air carrier aircraft are now serviced and inspected by third-party facilities both domestic and foreign whose mechanics are not required to be certified or to have extensive FBI background checks.

Immigration authorities say that anytime you have individuals working in critical areas who have false identities and fraudulent documents, a serious security threat exists.

Operation Tarmac

An ongoing three-year-old immigration action called Operation Tarmac resulted in more than a thousand arrests and indictments at more than 200 airports around the country. Some of those arrested were aircraft service people, mechanics, and screeners, among others. Early this year this enforcement action also audited several large independent aircraft maintenance facilities. Newspaper reports said that some of the undocumented people employed as aircraft mechanics at these facilities came from Mexico and South America as well as Sudan and some Pacific Rim countries.

No great punitive action was taken against the employers involved in Operation Tarmac. Most of the illegal employees were put through deportation court proceedings. As a result, more investigative efforts have been put in place to prevent the hiring of undocumented persons and others with criminal backgrounds.

Third-party maintenance

Domestic and foreign maintenance providers with bargain basement priced work are doing a huge business with our domestic airlines. U.S. air carriers are continuing to outsource their maintenance to both overseas and domestic providers at an ever-increasing rate. At the same time they are getting rid of the in-house maintenance function and of course the mechanics involved. There may be some short-term savings and it may result in some carriers being able to reduce their costs and stay in business.

Looking for the lowest cost bidder for their maintenance however, may well come back to haunt some carriers as their fleet continues to age. As John Goglia, former NTSB member, has explained, most of the fleet today are newer planes with better designs for more reliability and fewer accidents. But this “safety bump” as he calls it, will diminish as these newer planes age and need more intensive upkeep. We’ll have to wait and see if he is right.

Fortunately, most of the illegal people caught up in immigration sweeps at maintenance facilities did not turn out to be serious threats to security. But, as the security people say we can’t take any more risks with security after 9/11.

Air carrier and airport 10-year background check

You might think that the air carrier maintenance business is very vigilant in its hiring procedures because of the investigations by human resources people. Not so.

The FBI 10-year criminal background check and fingerprinting of employees, for example, only applies to air carriers and air carrier airport people who are given access to secure areas, the so-called SIDA (Secure Identification Display Areas) areas (TSA 49CFR 1544.229).

Although some employers go the extra mile and force this extensive check on all, it is not mandated by law for any maintenance facilities. Furthermore, independent maintenance companies can use outside contractors to supply their employees, thus depending on somebody else to do the security checking. These companies thus attempt to insulate themselves from any fault for anybody who slips by any check at the contractor. RICO does not allow this excuse.

The employees of repair facilities are subject to drug and alcohol checks if they work on air carrier aircraft but unless they work in SIDA areas at an air carrier airport they need not have the FBI 10-year fingerprint and background check before employment. Any criminal background or immigration violations probably would not be detected. As far as the foreign repair facilities are concerned they are not required to have any surveillance in place or even drug tests in order to work on U.S. air carrier aircraft. The FAA and TSA have no control over them and cannot demand any employee surveillance.

Steps have been taken here at home to seriously curtail this dangerous practice of looking the other way to hire people who are in the country illegally just to save some money. In addition, undocumented employees could be under threat of being revealed if they did not perform in some illegal scheme (blackmailed).

Refer to a more extensive piece on the FBI 10-Year Background Check in the October 2002 issue of AMT.

Read, write, and speak English

We all know that any certified mechanic in the United States is required to read, write, and speak the English language before being issued any kind of FAA mechanic certification (FAR 65.71, 65.101).

You might recall that some of the people involved in the ValuJet accident in Florida some years ago who handled the oxygen canisters that exploded could not read the instructions on the used cans being removed from service.

Some of these people were reported as undocumented. They were not A&P mechanics but as the FAR says they could be supervised by a certified A&P (FAR 65.81).

Virtually all of the arrested individuals netted in Operation Tarmac at aircraft maintenance facilities needed interpreters while in their court proceedings. Needless to say, they are all given free legal services of a court-appointed lawyer and an interpreter. The employer at one facility steadfastly maintained that no employee would be hired if they could not speak, read, and write English and that it had a system in place to enforce this. However, one of the arrested persons said that he spoke English too poorly to be held accountable for illegal immigration!

RICO may now become the statute of choice by some lawyers who may find a fertile source of income in filing lawsuits against companies that have a continuing practice of hiring the undocumented in all sorts of business including aircraft maintenance facilities. If the pressure is placed directly on the employers and they are threatened with having to pay triple damages plus attorney fees and costs, they will be careful in their hiring practices and think twice before jeopardizing their bank accounts. Please send comments to [email protected].

About the Author

Stephen P. Prentice

Stephen P. Prentice is an attorney with an Airframe and Powerplant certificate, is an ATP rated pilot, and is a USAF veteran. E-mail: [email protected].