A federal judge on Oct. 10 called a halt to plans by the Department of Homeland Security’s (DHS) to implement new rules on how employers should respond to “no-match” letters that flag discrepancies between employee names and the Social Security numbers they provide to employers.
U.S. District Judge Charles R. Breyer’s preliminary injunction means that the government will either has to go back to square one and rewrite the rules or fight the court decision.
The ruling came after the ACLU, U.S. Chamber of Commerce, AFL-CIO and several other labor organizations filed suit to block the rules, which would have provided what DHS called a “safe harbor” for employers.
The rules spelled out precise timetables for when and how employers should respond when they receive no-match letters. They gave employers and employees 90 days to resolve Social Security number mismatches. If discrepancies remained after 90 days, employers would either have to fire the workers or face charges that they had knowingly hired illegal immigrants.
The plaintiffs in the case (American Federation of Labor v. Chertoff, No. C 07-04472 CRB, ND CA, 2007) argued that the rules would have encouraged employers to fire anyone whose name appeared on a no-match letter. They also challenged DHS’s authority to use Social Security records to enforce immigration law and claimed the agency had failed to assess the rules’ impact on employers.
Critics of the DHS rules noted that the system of generating no-match letters regularly flags thousands of legitimate workers every year.
Breyer agreed, writing that implementation of the rules would likely “result in the termination of employment to lawfully employed workers.” He also noted that the rules would burden employers with high employment-eligibility verification costs.
Homeland Security Secretary Michael Chertoff said he was considering appealing the injunction to the 9th Circuit Court of Appeals. That could happen as early as the end of October 2007, but would likely take longer. Otherwise, Breyer will preside over a trial in the case, which could be months away.
"The long and short of it is that the no-match rule is not going to happen this year," said attorney Greg Siskind, one of the nation’s leading experts on immigration and employment. "The case will be heard or DHS will withdraw the rule and address the judge’s objections and then re-release it. However, until DHS can demonstrate that the system is reliable enough to minimize any problems with US citizens being falsely identified, the odds are likely the courts will prevent any rule of this nature from taking effect."
Meanwhile, Chertoff said DHS will continue to crack down on employers who hire illegal immigrants.
“We are taking aggressive steps at our borders and in the interior to do just that and the no-match regulation is an important part of our efforts,” he said in a statement. “We will continue to aggressively enforce our immigration laws while reviewing all legal options available to us in response to this ruling.”
In light of DHS's commitment to continue enforcement action against employers of illegal workers, Siskind urged HR professionals to take a proactive approach to complying with rules already on the books. Having complete and accurate I-9 forms on file for each employee is key.
“Don’t wait until you get a notice from the government saying they want to come in and check your records. Do a self-audit,” Siskind advised. “You can significantly reduce the threat of being fined if you make an effort to clean up your own records.”
Siskind offered that analysis during a recent HR Specialist audio conference titled “The New Rules on Hiring: The Legal Way to Handle No-Match Letters and I-9s.”
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