‘No Match’ Letters Get ‘No’ From Judge

By Jane Fyksen, Crops Editor
Thursday, October 18, 2007 8:38 AM CDT

A federal judge has blocked a proposed rule requiring employers n including dairy farmers n to fire workers whose names don’t match their Social Security numbers. The judge’s decision has dealt a major blow to the Bush Administration’s crackdown on illegal immigration.

Under the rule, dairy producers and other employers with hired workers whose names and Social Security numbers didn’t match were given three months to remedy errors or fire the workers n or face government prosecution. Employers feared being exposed to government action if they didn’t comply or legal action from employees they might have fired unfairly because of an error not corrected in time.

U.S. District Judge Charles Breyer in San Francisco, Calif., issued a temporary injunction last week that stopped the federal government’s Department of Homeland Security proposal from going into effect, at least temporarily. In other words, the Department of Homeland Security (DHS) is prevented from issuing the so-called "Social Security No-Match" letters pending a final judgment on the merits.

Congress failed to agree on immigration reform legislation, therefore, a number of measures will be used to more strictly enforce existing laws, including worksite enforcement. One of those measures is the new Department of Homeland Security (DHS) rule on how employers should deal with no-match letters received from the Social Security Administration (SSA). The final rule called “Safe-Harbor Procedures for Employers Who Receive a No-Match Letter” was scheduled to go into effect last month. However, the implementation has been temporarily halted by the federal judge. The judge noted the proposal would likely impose hardships on employers and their workers, that employers would incur new costs to comply that the government hasn't evaluated, and that innocent workers unable to correct mistakes in their records in time would lose their jobs.

Michael Chertoff, Homeland Security Secretary, admitted disappointment about the decision but called it no more than a “bump in the road” in his agency's vigorous enforcement of laws to keep illegal immigrants out of the work force.

Chertoff told The Associated Press that the government will evaluate the “modest legal obstacles” presented by the judge, addressing them in litigation or outside court, as it examines its options and determines whether to appeal the decision. Chertoff doesn’t think the judge’s ruling is Insurmountable.”

“The key is to move forward. We're committed to using every tool available to enforce our immigration laws,” he vowed.

Plaintiffs, including the AFL-CIO, the American Civil Liberties Union and the U.S. Chamber of Commerce, see last week’s legal decision as a significant victory against a program they believe would foster discrimination, lead to job losses of lawful employees, and expose employers to additional expenses and the fear of prosecution.

The court last week “reaffirmed its concern about the government's authority to act and its failure to adequately consider the costs it imposes on small businesses,” says Robin Conrad, executive vice president for the Chamber's National Litigation Center. The U.S. Chamber is the world's largest business federation, representing more than three million businesses and organizations of every size, sector and region.

"When DHS initiated the rule, it explained that the regulatory flexibility analysis was not necessary because the rule didn't mandate any new burdens on the employer and didn't impose any additional costs on the employer. However, because the failure to comply with the rule subjects employers to the threat of civil and criminal liability, the rule essentially mandates costly compliance with a new 90-day time frame for resolving mismatches,” he explains.

As noted, the Chamber intervened in a legal challenge, arguing that DHS’s regulation imposed new, onerous procedures that employers would have to follow if they received letters from the Social Security Administration (SSA) that Social Security numbers used by their workers do not match the records in the SSA database. Additionally, DHS did not comply with the requirements of the Regulatory Flexibility Act when it concluded the new regulation would impose no "new or additional costs" on employers. In granting the Chamber's Preliminary Injunction in AFL-CIO et al. v. Chertoff, the Court correctly recognized the irreparable harm that businesses and innocent employees would suffer if the no-match rule went into effect, the Chamber notes.

If enacted, the DHS rule will create considerable compliance costs, particularly in light of the fact that the agency estimates that 140,000 letters will be sent to employers identifying multiple names including almost eight million mismatches. Further, employers cannot simply ignore this regulation because doing so would expose them to claims that the employer knowingly hires undocumented workers.

"The logical next step is for the federal government to enact comprehensive immigration reform," Conrad stresses. "Attempts to regulate immigration on a piecemeal basis- whether by federal or state action-create a patchwork of inconsistent requirements that would have a negative effect on the U.S. economy."

Last week’s decision “reassures authorized workers and U.S. citizens that their rights will be protected,” says Marielena Hincapie, with the National Immigration Law Center, an attorney on the case.

The plan to issue DHS warnings was announced in August. As noted, the government had about 140,000 letters ready for employers by September, when they were scheduled to be released. Each contained the names of 10 or more employees with mismatches in their records. About eight million employees n including many within the dairy industry - would be affected, according to court documents.

“This would cost a lot of money for employers to comply with,” said Angelo Amador, director of immigration policy for the U.S. Chamber of Commerce, a party to the suit. “This was drafted and published in haste, and now the Administration is paying for it.”

The government had argued that the rule doesn’t impose an additional expense but simply provides guidelines to businesses that want to avoid liability for hiring undocumented workers.

“If an employer gets an indication of problems with an employee’s Social Security number or their name, they've got to ask about it,” Chertoff notes. “That seems commonsense to me.”

The letters were held after labor groups and immigrant activists filed a federal lawsuit, and asked the judge to block the regulation until its legal merits could be evaluated in court. The injunction blocks the implementation of the government’s plan until the lawsuit is resolved or an appeals court overturns the judge’s decision.

For years, the SSA has let businesses and employees know when there were inconsistencies with their records, mainly so workers wouldn’t lose access to the funds they were contributing to Social Security. Often, mismatches stem from undocumented immigrants who make up Social Security numbers to get a job. But because the discrepancies can result from a number of innocent mistakes like misspellings of a name and “typos,” the agency's letters always clarified that the mailings didn’t “make any statement about an employee’s immigration status.”

According to Vera Bitsch, who specializes in ag labor issues within the Department of Ag Economics at Michigan State University, the judge has prohibited enforcing the rule until the case has been finally decided, which might take until Supreme Court action.

Bitsch explains the no-match letter is an “Employer Correction Request” sent out by SSA, if employees’ names and Social Security numbers provided on earning reports (W-2 forms) do not match SSA records. There are many reasons for a mismatch between employer and SSA records, including transcription errors and name changes due to marriage that have not been reported to SSA. Employers should not assume that the mismatch is the result of any wrongdoing on the part of the employee. Moreover, an employer who takes action against an employee based on nothing more substantial than a mismatch letter may violate the law. Knowledge that an employee is unauthorized may also not be inferred from a job applicant’s or an employee’s foreign appearance or accent.

However, DHS’s new rule explicitly included the receipt of a no-match letter from SSA in circumstances under which an employer’s knowledge “may fairly be inferred through notice of certain facts and circumstances which would lead a person, through the exercise of reasonable care, to know about a certain condition” (that certain condition being the lack of work authorization). But if the employer follows “reasonable steps after receiving such information” (safe-harbor procedures), DHS said it will not use the letter in an allegation that the employer had constructive knowledge that the employee referred to in the letter was an alien not authorized to work in the U.S., Bitsch details.

Increase in ‘guest worker’ sought

Also last week, the Bush Administration announced it’s coming up with new rules so U.S. producers would be able to bring in more foreign “guest workers.” The Administration sees a need to make procedural changes and larger regulatory changes in the guest worker program after Congress killed an immigration overhaul this past summer. It sees the present temporary agricultural worker program as antiquated and cumbersome.

After President Bush called for changes in the program in August, the White House and the Departments of Labor and Homeland Security solicited recommendations from farm groups on how to streamline the program.

Bitsch has developed a handy employer checklist for farmers looking at hiring their first employees n Hispanic or not. It’s a place to start exploring what can be some highly complicated requirements. Go to http://www.msu.edu/user/bitsch.

Another handy resource is a new publication by Gregorio Billikopf, an ag labor expert with the University of California. He has a 59-page publication on “agencies and agriculture” that can be downloaded at http://www.cnr.berkeley.edu/ucce50/ag-labor/7links/AGENCY07.pdf. It includes phones, addresses, and links to agencies with which farm employers may need to deal with from time to time. While farm employers throughout the U.S. may find useful information in the publication, it also has specific information targeted at California farm employers.

According to Bitsch, every employer is required to have an I-9 form on file for every employee hired after Nov. 6, 1986. In following the I-9 procedure, employers must verify the identity and authorization to work in the U.S. for every employee they hire.

“Accordingly, a farmer, as well as every other employer, is prohibited from hiring a person who is not authorized to work or to continue employment of a person after obtaining knowledge about this person’s lack of work authorization. It does not matter whether this knowledge is actual or constructive,” says Bitsch. “DHS considers the lack of properly completed I-9 forms as an example of constructive knowledge.”

“Another example potentially encountered by a dairy farmer is an employee, such as a milker, who requests an employment-based visa petition on his or her behalf,” Bitsch adds.

Penn State University at http://dairyalliance.psu.edu/hr/hispanic/ offers help in completing Form I-9, or Employment Eligibility Verification. The following apply:

* It must be completed for all employees within three business days of the date employment is to begin.

* It must be completed by the employer or employer’s representative, not by anyone else.

* The producer/employer must see documents as specified on page 3 of the I-9 form. The employer may not require the potential employee to provide certain documents.

* Keep all I-9s in a separate file so that they can be easily accessed if requested.

* Retain I-9s for three years from date of hire or for one year from date of termination of employment. Employees with temporary work authorization must provide proof of reauthorization when initial document expires.

* Employers are not required to keep copies of documents provided by employees.

* Here’s a link to the I-9 form: http://www.uscis.gov/files/form/i-9.pdf.

Online verification

Finally, there’s online verification of employment eligibility now, offered by Social Security and the Department of Homeland Security. It will allow producer/employers to check work authorization. Registration is required to use the website at http://www.dhs.gov/E-Verify.

E-Verify is free and voluntary and the best means available for determining employment eligibility of new hires and the validity of their Social Security numbers. Employment eligibility verification queries authorization checks on all newly hired employees, including U.S. citizens and non-U.S. citizens, involving SSA and DHS databases. The SSA database has 425 million records, and there are more than 60 million records stored in the DHS database.

Currently, 93 percent of an employer’s queries are instantly verified as work authorized.

The U.S. Citizenship and Immigration Services launched a photo screening tool last month that allows a participating employer to check photos on Employment Authorization Documents or Permanent Resident Cards (green cards) against images stored in its databases. The goal of the new photo tool is to help employers determine whether the document presented reasonably related to the individual and contains a valid photo.

More information on the lawsuit filed against the “no match” rule is available at http://www.aclu.org/immigrants/workplace/31537prs20070831.html.

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