AFL-CIO, ACLU and National Immigration Law Center Challenge New Homeland Security Rule
SF Building Trades Council, SF and Alameda County Labor Councils are Co-plaintiffs

The San Francisco Labor Council, San Francisco Building and Construction Trades Council, and Central Labor Council of Alameda County are plaintiffs in a lawsuit filed by the AFL-CIO August 29 that seeks to overturn a new Department of Homeland Security (DHS) rule that would set administrative sanctions against employers who hire illegal immigrants. The AFL-CIO, the American Civil Liberties Union, the National Immigration Law Center (NILC) and the Labor Councils and SFBCTC filed the lawsuit in U.S. District Court for the Northern District of California charging that the new DHS rule will threaten jobs of U.S. citizens and other legally authorized workers simply because of errors in the government’s inaccurate social security earnings databases. The rule was announced by Homeland Security Secretary Michael Chertoff earlier in August. The rule violates workers’ rights and imposes burdensome obligations on employers who receive Social Security Administration (SSA) “no-match” letters that inform an employer of alleged discrepancies between employee records and the SSA database.

Under the new rule, many U.S. citizens and legally authorized workers could be required to be terminated if their erroneous SSA records are not fixed within 90 days of an SSA “no-match” letter being sent to an employer. The SSA was set to send out notices to approximately 140,000 employers, affecting about eight million employees, to enforce the new rule. The rule was scheduled to go into effect on September 14, but the Court granted an injunction until a court hearing scheduled for October 1 in San Francisco.

“This rule is a new tool to repress workers’ rights in the name of phony immigration enforcement,” said John Sweeney, President of the AFL-CIO. “Employers have used SSA ‘no-match’ letters to fire workers when workers try to organize, when they report a wage claim or workplace hazard, or when they get injured. The new rule gives employers a stronger pretext for engaging in such unlawful conduct.”

San Francisco Labor Council Executive Director Tim Paulson said that, “We think this is a spiteful rule by the Bush Administration. Even before this move by DHS the no-match letters were being used against people of color, people from Latin America, in a racist way.”

Last year several thousand workers were rounded up by the Immigration and Customs Enforcement agency of DHS at Swift meat packing plants in the Midwest, around the time workers were organizing with the United Food and Commercial Workers union. More recently, the Woodfin hotel in Emeryville used the issue of no-match Social Security numbers to fire 20 hotel workers. Alameda County Central Labor Council Executive Secretary-Treasurer Sharon Cornu said the hotel fired the workers for asserting their rights under Emeryville’s living wage ordinance.

“Our experience with the no-match letters is that employers ignore them until the workers begin organizing campaigns; then it becomes a big concern and they fire the organizers,” Cornu said.

The Alameda County CLC recently affiliated with the Workers’ Center in Oakland, Lucha Unida. The AFL-CIO and the National Day Laborer Organizing Network (NDLON) reached a partnership agreement last summer that paved the way for AFL-CIO central labor councils and state federations and NDLON’s day laborer worker centers to work together on issues ranging from workplace rights to immigration reform to health and safety and other job-related concerns. “We are working with immigrant workers in many industries, including Port of Oakland truckers,” said Cornu.

But the issue of the no-match letters and potential firing of workers goes beyond just undocumented or documented immigrant workers. As Cornu pointed out, “Many native born workers have had problems with their Social Security numbers.”

Currently, under the Immigration and Nationality Act (INA), employers must verify the immigration status of employees upon initial hire, using a process carefully crafted by Congress. The new DHS rule imposes liability 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 percent—belong to native-born U.S. citizens.

“The new rule turns the law on its head by using the notoriously incomplete and inaccurate social security databases to decide who is authorized to work. This will wreak havoc with workers and businesses and will cause massive discrimination against anyone who looks or sounds ‘foreign,’” said Lucas Guttentag, Director of the ACLU’s Immigrants’ Rights Project. “DHS is trying to hijack the social security system for improper immigration enforcement.”

“The database is problematic but the Bush Administration is using a problematic database for ideological reasons,” Alameda CLC’s Cornu said. “Now DHS is using the bad database to harass and intimidate workers.”

Under the current system, employers submit records of employee earnings to SSA so that workers can receive credit for their earnings. Sometimes an employee’s name and social security number do not match the information in SSA’s enormous and error-prone database. In that case, a report is placed in SSA’s Earning Suspense File, which is protected by tax privacy laws. The database currently contains more than 250 million unmatched records, a substantial portion of which belongs to U.S. citizens and lawfully working non-citizens.

When a database discrepancy occurs, SSA sends “no-match” letters to certain employers advising them of such. In the past, the letters have been purely advisory, and clearly state that they do not “make any statement about an employee’s immigration status.” SSA has recognized in the past that the issuance of a “no-match” letter does not indicate that an employee is not authorized to work, and when SSA has been able to resolve mismatches, most turned out to involve U.S. citizens.

Under the new DHS rule, however, an employer who receives a “no-match” letter is required to give the employee 90 days to resolve the data discrepancy with the huge SSA bureaucracy, a formidable challenge. If the employee is unable to do so, the employee must complete a new employment verification form, using identification documents with a different social security number. If the worker insists the original number submitted is correct but can’t resolve the discrepancy by the deadline, DHS requires the employer to take “reasonable steps” that might include firing the employee.

Rather than go through this burdensome process, some employers are likely to simply fire workers whose names appear on the letters—including U.S. citizens and other authorized workers—without giving employees a chance to correct the information, said the groups that filed the lawsuit. Unscrupulous employers will simply ignore the letter and continue to employ undocumented workers.

“It is truly ironic that the DHS calls this rule a ‘safe harbor,’” said Marielena Hincapié, Staff Attorney and Director of Programs at NILC. “Its real effect would be to create a devastating ‘storm’ of bureaucratic challenges, increased discrimination, potential financial ruin for workers, and improper and burdensome obligations upon employers. And we know from years of experience in dealing with ‘no-match’ letters that unscrupulous employers will use the new rule to legitimize their adverse employment actions against workers exercising their labor rights.”

Sharon Cornu said that the labor movement would continue to defend the rights of workers, whether they are union or non-union, immigrant or native born. “The movement has always worked on the issues that impact all workers, not just union members—like health care, living wage, transportation. A number of our affiliated unions include a majority of immigrant workers now. Whenever we raise the floor we raise it for all workers. It’s about the fundamental rights of all workers,” she said.
Tim Paulson said one reason the SF Labor Council joined the lawsuit was because, “We firmly believe that the Social Security Administration was not set up to police immigration.” He pointed out that, “Even some employer groups like the Association of General Contractors and the statewide Restaurant Association are opposed to the policy and disagree with it. The Department of Homeland Security is overplaying its hand.”

Secretary-Treasurer Michael Theriault of the SFBCTC said, “We look at the high number of immigrants who are members of our affiliated locals, we see how common are the confusions that arise from how Spanish surnames and Asian names and surnames work, and we are absolutely certain that the inefficiencies and errors already present in the ‘no-match’ system will be multiplied here. The Bush administration rule will affect our members and our work disproportionately. We have to stand up for them. It’s as simple as that.”

The lawsuit requests a court order preventing DHS and SSA from implementing the new DHS rule, including the initial mailing of ‘no-match’ letter packets that were scheduled to go out to employers on September 4, until a decision on the rule’s legality can be reached. The lawsuit also requests a finding that the rule is invalid. “We are pleased that the judge has stopped the letters from going out and that we will have our day in court October 1st,” said SFLC’s Tim Paulson.

- by Paul Burton