Safety Issues Raised at Georgia Site where Immigration Violations Alleged

Non-compliance with immigration law generally suggests non-compliance with other employment laws

By Andrew R. Arthur on September 24, 2020

In August and September, I detailed allegations that have been raised by various parties — including one high-ranking elected official — about immigration irregularities in the hiring of construction workers at a highly subsidized plant in Jackson County, Ga. New allegations have arisen concerning safety practices at that site. Some workers and employers have offered differing viewpoints on those claims (which I am in no position to evaluate and about which I take no position). But when an employer skirts immigration law, it suggests that the employer is skirting other laws, as well.

By way of background and reiteration, the state of Georgia and Jackson County invested heavily to land a battery manufacturing facility, to be run by SK Battery America (SKBA), a subsidiary of the South Korean firm SK Innovation (SKI). Even in a robust economy, states and localities will bid against one another with economic incentives to land the promise of good jobs for their residents, and the Wuhan coronavirus pandemic (with its associated economic downturn) has intensified such efforts.

In May, CBP reported that it had stopped "33 Korean Nationals with fraudulent employment letters" who were arriving at Hartsfield International Airport in Atlanta from Inchon (Seoul), South Korea via Korean Air. Local reporting (from Randy Travis, with the local Fox affiliate) revealed that they were on their way to the Jackson County site. This set off a wave of interest in the goings-on there, and in particular from local union officials and Rep. Doug Collins (R-Ga.), erstwhile ranking member of the House Judiciary Committee, who represents the area.

Travis suggested that contractors on the construction job had been "flying in overseas workers rather than using Americans to do some of the basic construction" (SKBA denied doing the construction hiring itself), as I noted in my September post.

In response, SKBA in August promised to perform what are described as "ongoing inspections" to ensure that contractors are in compliance with the immigration rules, and SKI stated that it planned to "impose severe sanctions, including possible termination" on any contractor found to be in violation of U.S. employment laws. So far, so good.

Thereafter, on September 14, Travis reported that some construction workers at the SKBA plant in Jackson County have told the federal government that certain contractors there "are ignoring safety concerns to finish the job on schedule."

Specifically, Kimel Brantley, who had serially worked as a safety officer for one of the contractors and one of the subcontractors at the site, has filed an Occupational Safety and Health Administration (OSHA) complaint about issues he saw. Brantley apparently told OSHA that "he had 'witnessed many workers exposed to fall hazards and general safety hazards,' but instead 'the companies decided to risk this activity so that production would stay on track for 2022 completion.'"

He further alleged that "the majority of the employees are Korean Nationals and Latino workers who have showed a lack of understanding of American safety standards." Although half-Korean himself, Brantley does not speak the language, and contended that "he tried to stress safety on the job site, but because he couldn't speak Korean his advice went nowhere."

I should note that the contractor for whom Brantley worked (Eastern Corporation), denies the allegations, in the strongest terms, telling the Fox affiliate "they 'can't imagine Mr. Brantley's comment being true because it is against Eastern's strict safety policy regardless of project schedule. Safety matters are our first and foremost priority.'" The subcontractor in question, MiDong, did not respond to the outlet.

Brantley is not the only one complaining about safety there. Randy Gregory, who works installing elevators at the site and has been in the construction industry for 26 years, stated: "It's a wonder someone hasn't been killed already." He continued: "They turn a blind eye to safety in order to get something done."

The union has filed a separate OSHA complaint (not naming a specific contractor) on behalf of Gregory and other workers, complete with pictures "showing what [Gregory] felt were serious safety violations by another contractor on the job site." The complaint states:

"The consensus of the workers that care about leaving the job at the end of the day in the same condition as they were when they walked in that morning is that there is little regard for proper safety procedures and hazard prevention on the job."

Travis reports that the local EMS has "responded to four emergency calls at the site since April, transporting two workers but none with life-threatening injuries." In July, OSHA fined a separate subcontractor on the site $6,072 (down from an initial fine of $10,120) for what Travis explains was "a scissors lift accident that sent a worker to the hospital."

For its part, SKBA, while noting that "on-site safety management is carried out under the responsibility of our general contractors", contends it "puts the safety of construction personnel at the site as the most important priority." It further asserts it is "working with our contractors to ensure all safety standards and appropriate procedures are being followed at the site."

Eastern makes clear that it "regularly trains its employees and subcontractors to provide the work environment [is] as safe as possible for all workers on site." It had no comment on the photos, some of which can be viewed in the Fox affiliate's story (and accompanying video) on the allegations.

Although, more than two decades ago, I was involved in construction law, I make no claim that I have the expertise to comment on (let alone judge) the various allegations that have been made regarding safety at this job site. There are usually two (or more) sides to any story, and I leave it to OSHA — and the various companies involved, their workers, and the union — to sort it all out.

That said, generally, as I explained in an August 2019 post: "Illegal Immigration Abets the Exploitation of Workers". I underscored therein that "even illegal immigrants are entitled to the protection of most of the labor laws of the United States, with the (obvious) exception of the employer-sanctions provisions in the Immigration and Nationality Act (INA)."

That post continued:

The United States has some of the best laws protecting working conditions of any country on the face of the earth in the history of man. When the pool of willing workers is much larger than the number of jobs that are available to them, however, employers are at an advantage when it comes to hiring, and some inevitably insist on working conditions that contravene those laws. Put another way, if potential workers get desperate enough, they will be willing to accept the terms set by the potential employer, even if those terms are in violation of the law and potentially injurious to the worker.

Brantly contends that he saw "Koreans" hired instead of "American workers" at the site, asserting: "And they weren't qualified ... . They got a bunch of guys there that need jobs. What I would do for $6,000 a month, they'll do for two."

Whether that is true or not, I don't know. But in the video that accompanied Fox's written article, Brantly stated that the affiliate's reporting had "brought a lot of changes up there, a lot of the Korean workers didn't even report to work", ostensibly after SKBA set up a checkpoint at the site where "foreign workers are required to show passports and proof that they can legally work here" (which SKI had promised, as I noted in my September post).

Other employment violations can often be found at places where there are (or have been) violations of the employment provisions in the INA, and vice versa. Oddly, however, as I explained in that August 2019 piece, some high-ranking members of Congress have taken ICE to task in the past for investigating immigration violations at employers where other (non-immigration-related) employment violations have been found.

From my experience, some workers' complaints are valid and some aren't (and some are in between), and as I hope I have made clear already, I am in no position to assess the workers' allegations that have been made about safety at the Jackson County site. While I am much better positioned to comment on the purported immigration violations, I don't have all of the facts, so I am withholding opining on those, as well.

That said, however, if it turns out that the immigration complaints are deemed valid, it will not surprise me if the safety ones turn out to be true, too (and again, vice versa). In no sector of American life does illegal immigration exist in a vacuum. That is as true (if not more so) when it comes to safety in the workplace — a concern that all of us, regardless of political opinion or immigration views — should share.