After much controversy and litigation, the Department of Homeland Security threw in the towel and rescinded its proposed No Match rules.
For years, the Social Security Administration (“SSA”) has been sending “No-Match Letters” to employers who employed individuals whose social security numbers (“SSN”) did not match their personal information. The SSA, however, provided unclear guidance for responding to the letters. Seeking to fill the void, DHS the agency responsible for enforcement of our immigration laws, issued a new rule describing the steps an employer must take when it receives a “no match” letter from DHS or the Social Security Administration (SSA).
In October 2007, the AFL-CIO labor union obtained a court injunction prohibiting enforcement of the new rule. The DHS subsequently issued amended regulations, seeking to address some of the flaws raised by the union. But the effort lost steam, particularly after the new administration took over.
“After further review,” wrote the agency in its rescission notice, “DHS has determined to focus its enforcement efforts relating to the employment of aliens not authorized to work in the United States on increased compliance through improved verification, including participation in E-Verify, ICE Mutual Agreement Between Government and Employers (IMAGE), and other programs.” The rescission becomes effective November 6, 2009.
DHS notes that employers should still react when receiving a no match letter. An employer who receives such a letter may be seen to be on notice that the worker could be illegal. “Receipt of a No-Match letter, when considered with other probative evidence, is a factor that may be considered in the totality of the circumstances and may in certain situations support a finding of ‘‘constructive knowledge.’’ A reasonable employer would be prudent, upon receipt of a No-Match letter, to check their own records for errors, inform the employee of the no-match letter, and ask the employee to review the information.”
“Employers would be prudent also to allow employees a reasonable period of time to resolve the no-match with SSA.” Thus, the government has put employers between a rock and a hard place, shrugged its bureaucratic shoulders, and said “Too bad for you.”
Employers who receive No Match letters should take action to protect themselves from possible immigration enforcement actions.
First, upon receipt of a No Match letter, the company should research its own records to check for typographical errors.
If no errors are found, the employer should notify the employee that the SSN is incorrect. Ideally the notice should be in writing.
The company should advise the employee to resolve the issue with the SSA within a reasonable period of time. Thirty to ninety days ought to be sufficient.
If the employee is unable to resolve the discrepancy then the employer should probably terminate the employee.
Employers should be aware that improper terminations may be a violation of federal law. The DHS wrote in its commentary that it “acknowledges that an employer who terminates an employee without attempting to resolve the issues raised in a No-Match letter, or who treats employees differently based upon national origin, perceived citizenship status, or other prohibited characteristics may be found to have engaged in unlawful discrimination under the anti-discrimination provision of the Immigration and Nationality Act of 1952 (“INA”).
Christopher W. Olmsted, Esq.
Barker Olmsted & Barnier, APLC
Federal immigration authorities conducted the largest single-workplace immigration raid in U.S. history on August 25, 2008. In a small southern Mississippi town, federal agents rounded up nearly 600 plant workers suspected of being in the country illegally.
Immigration and Customs Enforcement (“ICE”) spokeswoman Barbara Gonzalez said federal agents arrested the workers in a raid at the Howard Industries Inc. factory in Laurel, Miss, on Monday. “This is the largest targeted workplace enforcement operation we have carried out in the United States to date,” said Gonzales, as quoted in a Reuters article .
Reuters reported that the swoop at the plant, which makes electrical equipment including transformers, was part of an ongoing crackdown on identity theft and fraudulent use of Social Security numbers by illegal immigrants.
The news account notes that the raid comes amid a toughening stance toward illegal immigrants in the United States, where some 12 million live and work in the shadows. Since October 1 last year, more than 4,000 people have been nabbed in stepped-up enforcement raids across the country.
It remains to be seen whether company executives will be prosecuted.
The Associated press reports here that Gonzalez said agents had executed search warrants at both the plant and the company headquarters in nearby Ellisville. She said no company executives had been detained, but this is an “ongoing investigation and yesterday’s action was just the first part.”
The AP report notes that in a statement to the Laurel Leader-Call newspaper, Howard Industries said the company “runs every check allowed to ascertain the immigration status of all applicants for its jobs.” “It is company policy that it hires only U.S. citizens and legal immigrants,” the statement said.
As noted here, criminal and civil fines against employers has increased markedly since 2007.
Earlier this year, ICE issued worksite enforcement advisory titled “Know Your Workforce: The Key to Immigration Compliance.” The advisory notes: “A recurrent issue encountered in ICE worksite enforcement investigations today is the abuse of the Social Security card by individuals seeking to satisfy the work authorization requirements mandated by federal law. The Social Security card has long been a favorite of fraudulent document vendors. In fact, immigration fraud investigators have coined the term ‘three pack’ to refer to the frequently encountered fraudulent document combination of the Social Security card, the state driver’s license or identity card, and a work authorization document.”
The publication provides some compliance “so that employers do not inadvertently facilitate acts of identity theft within their own workforce.”
Employment Law • Human Resources • Immigration •
The hot political debate over immigration reform may have cooled some since last year, but employers need to remain vigilant. U.S. Attorney General Michael Mukasey recently announced higher civil fines against employers who violate federal immigration laws.
The announcement in late February was made in a joint briefing with Secretary of Homeland Security Michael Chertoff about newly enacted border security reforms put in place by the Departments of Justice and Homeland Security. Under the new rule, which was approved by Attorney General Mukasey and Secretary Chertoff, civil fines will increase 25%, or by as much as $5,000. According to a DOJ press release, the new rule takes effect on March 27, 2008, and will be published in the Federal Register in the near future.
Under the Immigration and Nationality Act, employers who violate employment eligibility requirements are subject to civil monetary penalties. Employers may be fined under the Act for knowingly employing unauthorized aliens or for other violations, including failure to comply with the requirements relating to employment eligibility verification forms, wrongful discrimination against job applicants or employees on the basis of nationality or citizenship, and immigration-related document fraud.
Of more concern to employers is the fact that Immigration and Customs Enforcement (ICE) has dramatically increased the amounts of criminal fines and forfeiture over previous years of administrative fines alone. ICE reports that during the three quarters of FY 2007 alone, ICE has obtained criminal fines, restitutions, and civil judgments in excess of $30 million.
Employment Law • Human Resources • Immigration •
Two recent cases examine the intersection of immigration law and employment litigation and both decisions are in favor of the immigrants.
First, California employment law does not make distinctions between employees working lawfully or illegally. Labor Code 1171.5 plainly declares:
(a) All protections, rights, and remedies available under state law, except any reinstatement remedy prohibited by federal law, are available to all individuals
regardless of immigration status who have applied for employment, or who are or who have been employed, in this state. (b) For purposes of enforcing state labor and employment laws, a person’s immigration status is irrelevant to the issue of liability, and in proceedings or discovery undertaken to enforce those state laws no inquiry shall be permitted into a person’s immigration status except where the person seeking to make this inquiry has shown by clear and convincing evidence that the inquiry is necessary in order to comply with federal immigration law.
In Reyes v. Van Elk, the California Court of Appeal held that section 1171.5 is not preempted by federal immigration laws. Reyes and others accused Van Elk of failing to pay the “prevailing wage.” The Superior Court held that federal immigration law preempted section 1171.5 and that Reyes could not seek unpaid prevailing wages because he was an illegal immigrant. The court of appeal reversed, holding that federal law (IRCA) does not preempt section 1171.5, and that Reyes had standing to sue for unpaid wages.
Second, in a case having broad implications for employers hiring workers under immigration visas such as H1-B’s, the Ninth Circuit Court of Appeals held that an employer could be held liable for wrongfully discharging an employee who was not authorized to work in the U.S. The case is Incalza v. Fendi N. Am. Incalza worked for Fendi under an E-1 visa. When a French company bought Fendi, the E-1 visa no longer was valid. Fendi, which did apparently not want to retain Incalza anyway, discharged him because he was not lawfully working in the U.S. Incalza asked for a leave of absence to obtain a visa or to marry his fiance, a U.S. citizen.
Incalza sued for breach of contract not to terminate without good cause, among other things. Fendi argued that “good cause” was established because Incalza was not lawfully allowed to work, and Fendi was not obligated to wait until Incalza became authorized to work. A jury found in favor of Incalza. Fendi appealed and ran right into Stephen Reinhardt.
The Court of Appeals said that IRCA does not require employers to terminate workers who may resolve immigration status if they are granted a leave of absence. Does the law require granting a leave of absence? No, but this did not stop the Court of Appeals. The Court said that an employee on leave is not actually “employed” under IRCA. (This is news to employers who must provide all sorts of leaves with guaranteed reinstatement.) Because the employee is not really “employed” while on leave, the court reasoned, the employer can comply with IRCA and not discharge the worker.
Distinguishing Supreme Court authority and the IRCA statute itself, the Court announced this rule: “as a general rule, individuals who are indisputably not authorized to work must be discharged immediately. An individual who has the opportunity to switch from an E-1 to an H1-B . . . is, however, another matter.”
Incidentally, the court also held that IRCA does not conflict with Lab. Code section 1171.5, just as the state court in Van Elk did. So, that issue is settled unless the Supremes take up Fendi.
In light of this case, employers seeking to discharge employees must carefully examine whether to use the expiration of a visa as the sole justification for termination. The courts may well say that it was not “necessary” to discharge the worker merely because he or she no longer was authorized to work in the U.S.