The United States workforce consists of approximately 270 million people. Currently, between 10 and 20 million illegal aliens reside in the U.S. After
E. Ray Stanford, Jr.
The United States workforce consists of approximately 270 million people. Currently, between 10 and 20 million illegal aliens reside in the U.S. After factoring in voluntary departure and deportation, the illegal immigrant population is growing at a rate of 500,000 per year. (The figures vary depending on the organization conducting the estimate.) Despite the encouragement of the Administration and citizens, Congress failed to enact legislation in 2006 and the first half of 2007 to address the illegal immigrant problem. On August 10, 2007, the Bush Administration announced a strategy of aggressive enforcement of existing law.
In regulations issued August 14 and entitled Safe-Harbor Procedures for Employers Who Receive a No-Match Letter, the Department of Homeland Security (DHS) attempted to implement mandatory steps for employers who received No-Match letters from the Social Security Administration (SSA). A No Match letter notifies an employer that an employee’s name and social security number are inconsistent with SSA records. In the past, receipt of a No-Match letter rarely followed with government enforcement action.
A California District Court enjoined enforcement of the DHS regulations on October 10. While the injunction prohibits the SSA from coordinating its distribution of No-Match letters with the DHS, the injunction does not prohibit the SSA from sending No-Match letters. Moreover, the District Court agreed with the DHS’s position that an employer’s receipt of a No-Match letter could be evidence of constructive knowledge that [the employer] hired, or continues to employ, an individual who lacks work authorization. Homeland Security Secretary Michael Chertoff called the injunction a bump in the road in the agency’s drive to vigorously enforce laws aimed at keeping illegal immigrants out of the work force. Thus, the promulgation and injunction of the No-Match regulations should guide an employer’s response to receipt of a No-Match letter.
What should an employer do after receiving a No-Match letter from the SSA? Until Congress, the Administration, or the courts alter the status quo, a reasonable employer should consider incorporating most of the steps set forth in the Department of Homeland Security’s proposed final rule regulation, Safe-Harbor Procedures for Employers Who Receive a No-Match Letter.
- After receiving a No-Match letter, the employer should check its records promptly to determine whether the discrepancy results from a typographical, transcription, or similar clerical error in the employer’s records or in its communication to the SSA or DHS. If an employer discovers an error, the company should correct its records, inform the relevant agency(ies), verify that the corrected names and numbers match the agency’s(ies’) records, and make a record of the manner, date, and time of the verification.
- If the employer cannot resolve the name-number mismatch, the employer should ask the affected employee about the accuracy of the company’s information. If the employee identifies mistakes, the employer should correct the records, inform the relevant agency(ies), and verify the corrected records with the agency(ies). (Typically, No-Match letters provide agency contact information.)
- If the affected employee agrees that the company has accurately recorded the employee’s name and social security number, the employer should ask the employee to address personally the matter with the relevant agency. The employer should complete steps one through three within 30 days after receipt of the No-Match letter.
The next steps borrow from the DHS’s proposed safe-harbor regulation, but include additional strategies that appear reasonable in the context of the current legal environment.
- An employer should allow a worker a reasonable period of time to correct the inconsistencies. The proposed DHS regulation recommends that an employer give the employee-in-question an additional 60 days to correct the inconsistency. An employer that adopts the same 60-day grace period should be deemed to have selected a reasonable period of time. (Combining the 60-day period for the employee to correct the name-number mismatch with the initial 30-day period to evaluate the validity of the employer and SSA’s existing documents results in a 90-day window to complete the process.)
- Whether the employer should place the employee on a leave of absence pending resolution of the No-Match issue is a close call. An employer that desires to place the employee on a leave of absence will receive support from the Immigration and Nationality Act (INA).
The INA prohibits an employer from intentionally employing an illegal alien. Receipt of the No-Match letter from the SSI places the company on notice that questions surround the documentation provided by the employee.
The Immigration Reform and Control Act of 1986 (IRCA) requires the employer to obtain proper documentation within three days of an employee’s hire date. By the time the employer requests the worker to remedy the name-number mismatch, the company will have allowed the employee to work with questionable documentation for more than three days (i.e., the period of time that runs from receipt of the No-Match letter until the company directs the employee to correct the name-number mismatch). To continue employing the employee would appear to contravene the Immigration and Nationality Act.
An employer that elects to allow the employee to continue working would look to the proposed DHS safe-harbor regulations for support. The DHS No-Match regulations do not address whether the employer should suspend the employee pending resolution of name-number mismatch. Allowing an employee to continue working, at least for the 90-day period following receipt of a No-Match letter, simply follows the same safe-harbor process recommended by the DHS.
- If the employer places the employee on a leave of absence pending correction of the name-number mismatch, should the leave be with or without pay? For some companies, a paid 60-day leave of absence will be prohibitively expensive, especially given the risk that the employee may not be able to provide proper documentation. On the other hand, suspending the employee without pay may risk a claim of national origin or citizenship discrimination because the company, arguably, has taken action on account of the person’s national origin or citizenship. (Of course, a company accused of discrimination should point out that continuing employment of an employee without sufficient documentation risks an IRCA violation.)
A third approach would be suspension with pay to be reimbursed upon correction of the name-number mismatch. While many companies would find a 60-day payment without work to be a substantial burden, not paying the affected worker who successfully corrects the name-number mismatch risks a claim of national origin or citizenship discrimination.
- If the affected employee does not return with acceptable documentation, then employment would end at the end of the 60-day grace period.
- If during the 60-day grace period, the employee offers documentation that corrects the name-number mismatch, then the employer should make a record of the manner, date, and time of the correction and store the data with the employee’s I-9 form.
- If the affected worker returns with new documentation, the employer should complete a new Form I-9 using the same procedures as if the employee were a new hire. As in the case of new hires, the employer should complete within three days both Section 1 (Employee Information and Verification) and Section 3 (Employer Review and Verification). When completing a new I-9 form, the employer may not use a document that contains the questionable social security number or a document that does not contain the photo ID of the employee. Note: The United States Citizenship and Immigration Services (USCIS) agency issued a new version of Form I-9 (http://www.uscis.gov/files/form/I-9.pdf). The form adds and subtracts permissible documents and modifies procedures dealing with photographs and social security numbers.
- Companies whose workers are covered by a collective bargaining agreement may have to bargain with the union over any changes in existing terms of employment, at least until Congress resolves the current workplace immigration issues. A workplace process that addresses the name-number mismatch problem may be a mandatory subject of bargaining under the National Labor Relations Act. The NLRA bars an employer from unilaterally implementing a term of work that is a mandatory subject of bargaining without negotiating with the union.
- Every name-number mismatch process should be developed with an awareness of state and local law. In light of the federal government’s failure to develop an acceptable workplace immigration process, a variety of immigration schemes and remedies have been or will be enacted by states or local governments. While the enforceability of such schemes remains unsettled, an employer should comply with all applicable state and local immigration laws.
As Congress wrestles with the final framework to regulate the interplay between the U.S. workplace and immigration, prudent employers should assume that the use of the workplace as a strategy to fight illegal immigration will remain a key component of any long-term national strategy. Thus, U.S. employers should carefully study and consider implementing portions of the DHS final No-Match rule.
As in the case of any article dealing with legal matters, these comments are not intended as legal advice. While the information may be useful, every situation should be treated as unique and independently analyzed with the assistance of competent counsel. Questions about this article may be sent to [email protected].
Ray Stanford Jr. presented Now What? at the 2007 Precast/Prestressed Concrete Institute annual convention in Phoenix. He is a workplace lawyer and partner with Shapiro Fussell Wedge & Martin, LLC, a boutique law firm serving the construction industry since 1970. His litigation experience as a trial attorney ranges from First Amendment interpretation and predatory competition to discrimination, wage and hour, and wrongful discharge actions. Stanford’s seminar series Û Fire Me÷I’ll Sue! and Fire Me÷I’ll Sue II Û has been attended by representatives of 1,000-plus companies. His activities include serving as editor-in-chief of Workplace Data Law (BNA, expected publication 2008). Û [email protected] shapirofussell.com