[Marxism] AFL-CIO, ACLU and National Immigration Law Center Challenge New Homeland Security Rule on SS number checks

Mike Friedman mikedf at amnh.org
Thu Aug 30 12:33:46 MDT 2007

AFL-CIO, ACLU and National Immigration Law Center Challenge New Homeland
Security Rule

Groups File Lawsuit Charging DHS Rule Would Cause Widespread
Discrimination and Harm U.S. Citizens and Other Authorized Workers

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

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

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

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

The complaint can be found at:

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