Federal judge issues temporary injunction on Social Security No-Match Rule

The following is a press release from the ACLU announcing a temporary injunction on the Department of Homeland Security’s recent use of the error-prone Social Security No-Match rule as a tool for immigration enforcement.  The DHS sends “no-match letters” to employers where alleged discrepancies have been found (i.e., where a worker’s name does not match the name officially registered to a given Social Security number), and the employers are then given 90 days in which to take action to resolve the discrepancy.  Such letters have long been used by employers to exploit workers (especially undocumented ones).

As Blixx blogged about last month (I can’t access the NYT article):

In a new effort to crack down on illegal immigrants, federal authorities are expected to announce tough rules this week that would require employers to fire workers who use false Social Security numbers.

Employers, especially in agriculture and low-wage industries, said they were deeply worried about the new rules, which could force them to lay off thousands of immigrant workers. More than 70 percent of farmworkers in the fields of the United States are illegal immigrants, according to estimates by growers’ associations.

The expected regulations would give employers a fixed period, perhaps up to 90 days, to resolve any discrepancies between identity information provided by their workers and the records of the Social Security Administration. If workers’ documents cannot be verified, employers would be required to fire them or risk up to $10,000 in fines for knowingly hiring illegal immigrants.

The new rules codify an uneasy partnership between the Department of Homeland Security, which enforces the immigration laws, and the Social Security Administration, which collects identity information from W-2 tax forms of about 250 million workers each year, so it can credit the earnings in its system.

If any of you are affected by this new “crack-down,” or know or work with anyone that is, it is so important for you to make sure this information gets out there.  In many cases upon receiving no-match letters, employers fire workers immediately–or those named leave right away because they feel scared, intimidated, or that they will not have any support if they try to stay.

Here’s the text of the ACLU announcement:

Court Halts Government From Implementing Flawed Social Security No-Match Rule (8/31/2007)
CONTACT: media@aclu.org

Judge Issues Order After Lawsuit Is Filed by AFL-CIO, ACLU, and National Immigration Law Center

SAN FRANCISCO – A federal judge today issued an order temporarily blocking the government from implementing a new Department of Homeland Security (DHS) rule that would cause U.S. citizens and other authorized workers to lose their jobs, and which would illegally use error-prone social security records as a tool for immigration enforcement. The judge’s order also stops the Social Security Administration (SSA) from beginning to send notices on Tuesday to approximately 140,000 employers across the country notifying them of the new rule, which would impact approximately eight million workers.

The order comes as a result of a lawsuit filed on Wednesday by the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO), the American Civil Liberties Union, the National Immigration Law Center (NILC) and the Central Labor Council of Alameda County along with other local labor movements. A hearing on the groups’ request to permanently bar the implementation of the DHS rule is scheduled for October 1 before U.S. District Court Judge Charles Breyer.

“We are very pleased that the judge recognized the need to halt the implementation of this ill-advised DHS rule,” said John Sweeney, President of the AFL-CIO. “Employers have historically used SSA ‘no-match’ letters to exploit workers and this rule would only give them a stronger pretext for doing more of the same.”

In the lawsuit, the groups charge that the misguided rule violates the law and workers’ rights and imposes burdensome obligations on employers who receive SSA “no-match” letters that inform them of alleged discrepancies between employee records and the SSA database.

U.S. District Judge Maxine M. Chesney found that the groups “raised serious questions as to whether the new Department of Homeland Security rule is inconsistent with statute and beyond the statutory authority of the Department of Homeland Security and the Social Security Administration.”

“The court found the balance of hardships tips sharply in favor of staying the rule while it is being challenged,” said Scott A. Kronland of Altshuler Berzon LLP, who argued at today’s hearing. “We are confident we will prevail when the court hears the case on the merits.”

Currently, employers who receive “no-match” letters stating that their employees’ identification documents don’t match SSA records are not required to take any action. The new DHS rule would impose liability on employers based on failure to respond to an SSA “no-match” letter, even though SSA errors are caused by many innocent factors such as typographical errors and name changes due to marriage or divorce, and the use of multiple surnames, which is common in many parts of the world. According to the Office of the Inspector General in SSA, 12.7 million of the 17.8 million discrepancies in SSA’s database – more than 70% – belong to native-born U.S. citizens. Under the DHS rule, employers might be required to fire employees whose erroneous SSA records are not fixed within 90 days after the “no-match” letter is sent. The DHS rule would threaten jobs of U.S. citizens and other legally authorized workers simply because of errors in the government’s inaccurate social security earnings database.

“This is a crucial and significant first step in challenging this rule, which would be a bureaucratic and costly nightmare for employers and many U.S. citizens and other legally authorized workers,” said Lucas Guttantag, Director of the ACLU’s Immigrants’ Rights Project.

“Today’s ruling takes us one step closer to an eventual finding that the DHS rule is unlawful. This is a great Labor Day victory for the millions of workers who would have been affected by no-match notice letters being sent out next week,” said Marielena Hincapié, Staff Attorney and Director of Programs at NILC.

Today’s order was handed down in the United States District Court for the Northern District of California.

In addition to the AFL-CIO, which is represented by the law firm of Altshuler Berzon, LLP, other parties bringing the lawsuit include the Central Labor Council of Alameda County, represented by the ACLU, the ACLU of Northern California, and NILC, as well as the San Francisco Labor Council and the San Francisco Building and Construction Trades Council, represented by Weinberg, Roger and Rosenfeld.

In addition to Guttentag and Hincapié, lawyers on the case include Stephen Berzon, Scott Kronland, Jonathan Weissglass, Linda Lye and Danielle Leonard of Altshuler, Berzon; Jonathan Hiatt, James Copess and Ana Avendaño of the AFL-CIO; Jennifer Chang, Mónica M. Ramírez, and Omar Jadwat of the ACLU Immigrants’ Rights Project; Alan Schlosser and Julia Mass of the ACLU of Northern California; Linton Joaquin and Monica Guizar of NILC; and David Rosenfeld and Manjari Chawla of Weinberg, Roger and Rosenfeld.

The complaint in the lawsuit can be found at: www.aclu.org/immigrants/workplace/31491lgl20070829.html

The order issued today can be found at: www.aclu.org/immigrants/workplace/31535lgl20070831.html


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One response to “Federal judge issues temporary injunction on Social Security No-Match Rule

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