[Marxism] AFL-CIO, ACLU, NILC challenge new Homeland Security Rule

[Greg McDonald]

August 29, 2007

CONTACT:  Ana Avendaño, AFL-CIO, (202) 637-3949; aavendan at aflcio.org
Laurie Gindin Beacham, ACLU, (212) 519-7811; media at aclu.org
Stella Richardson, ACLU-NC, (415) 621-2493; srichardson at aclunc.org
Marielena Hincapié, NILC, (213) 674-2812; hincapie at nilc.org

SAN FRANCISCO - The American Federation of Labor and Congress of  
Industrial Organizations (AFL-CIO), the American Civil Liberties  
Union, the National Immigration Law Center (NILC) and the Central  
Labor Council of Alameda County along with other local labor  
movements today filed a lawsuit charging that a new Department of  
Homeland Security (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  
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 rule is scheduled to go into effect on September 14.   
SSA intends to send out notices to employers enforcing the new rule  
beginning next Tuesday, September 4.  The new notices will be sent to  
approximately 140,000 employers, affecting about eight million  
employees.

  "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."

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 rule would  
upset the careful balance struck by Congress that does not impose  
continuing verification obligations or seek to hold employers liable  
based on SSA records.

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% - 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."

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." Indeed, 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."

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 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.

The lawsuit was filed today in the United States District Court for  
the Northern District of California.

In addition to the AFL-CIO, which is represented by the law firm of  
Altshuler Berzon, LLP, other parties bringing the lawsuit include the  
Central Labor Council of Alameda County, represented by the ACLU, the  
ACLU of Northern California, and NILC, as well as the San Francisco  
Labor Council and the San Francisco Building and Construction Trades  
Council, represented by Weinberg, Roger and Rosenfeld.

In addition to Guttentag and Hincapié, lawyers on the case include  
Stephen Berzon, Scott Kronland, Jonathan Weissglass, Linda Lye and  
Danielle Leonard of Altshuler, Berzon; Jonathan Hiatt, James Copess  
and Ana Avendaño of the AFL-CIO; Jennifer Chang, Monica M. Ramírez,  
and Omar Jadwat of the ACLU Immigrants' Rights Project; Alan  
Schlosser and Julia Mass of the ACLU of Northern California; Linton  
Joaquin and Monica Guizar of NILC; and David Rosenfeld and Manjari  
Chawla of Weinberg, Roger and Rosenfeld.

The complaint can be found at: http://www.aclu.org/immigrants/ 
workplace/31491lgl20070829.html