[Marxism] AFL-CIO, ACLU, NILC challenge new Homeland Security Rule
sabocat59 at mac.com
Thu Aug 30 05:40:31 MDT 2007
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
"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-
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/
More information about the Marxism