Lawsuit Blocks Enforcement of Workplace Rules
September 12, 2007

As the confusion continues to circle around the future of immigration laws in the United States, a new element has been added to the already complex issue. On August 10, 2007, the Department of Homeland Security (“DHS”), under the Bush Administration, announced a rule stating that upon receiving a letter (referred to as a “no-match” letter) from the Social Security Administration (“SSA”) indicating that a company’s information on an alien does not match the SSA’s own records, an employer will be required to fire the employee within 90 days, unless the employee can clear up the discrepancy. However, this new rule, set to go into effect on September 14, 2007, has been put on hold by a federal judge while a federal lawsuit seeking to bar the enforcement of the rule is pending.

This rule was enacted in hopes of jumpstarting the enforcement of workplace rules related to undocumented workers and penalizing employers who knowingly employ them. Currently, employers are required to obtain various specified identification documents from and maintain an I-9 (immigration status verification) filing for each member of its workforce. If the SSA determines that the information provided does not match the SSA record, the SSA will issue a “no-match” letter to the employer. The employer is then informed that the employee may not be credited with their Social Security contributions; however, no significant action is taken against the employer.

The August 10th announcement does not change the documentation requirement for employers or the processing for issuing “no-match” letters. However, upon an employer’s receipt of a “no-match” letter, the employee will be given 90 days to account for the discrepancy and clear it up. If an employee is unable to resolve the issue, the employer will be required to terminate the employee in question or possibly face prosecution.

Hoping to block the government’s enforcement of the announced rule, the AFL-CIO, the ACLU, and the National Immigration Law Center, filed a federal lawsuit. The suit alleges that the SSA’s error-prone system could inadvertently threaten the jobs of legal workers. The ACLU states that SSA mismatches can often occur due to blameless factors such as typographical errors, name changes, and the use of multiple surnames. The suit also alleges that the DHS and SSA do not have the authority to investigate the employers and employees.

On August 31, two weeks before the rule was supposed to go into effect, U.S. District Judge Maxine Chesney granted a temporary restraining order blocking the enforcement of the new rule, concluding that a serious question has been raised regarding the DHS and SSA’s legal authority to enforce the rule.

The temporary restraining order is in effect only through October 1st, at which time a different judge will review the various legal issues and determine whether it is appropriate to continue the restraining order while the matter awaits a final ruling.