Judge blocks rule requiring employers to fire workers identified as illegal immigrants

A federal judge in San Francisco has blocked the Bush administration from imposing a rule requiring employers to fire workers identified as illegal immigrants in government records or face possible prosecution. The court granted a nationwide temporary restraining order sought by the AFL-CIO and affiliated unions to keep the government from sending letters to employers demanding that they clear up workers' citizenship status. The order will be in effect until October 1, 2007, when another federal judge will consider whether to grant an injunction that would block the rule until a trial on the unions' lawsuit against the government is held. Homeland Security Secretary Michael Chertoff announced the rule Aug. 10 as a means of toughening the little-enforced 1986 law that subjects employers to criminal prosecution or civil penalties for knowingly employing illegal immigrants. Employers now can satisfy the law if they obtain specified identification documents from newly hired workers. After that, the government notifies employers if the Social Security number on a worker's W-2 tax form doesn't match the number in the Social Security database. That employee might not have earnings credited for Social Security benefits, but no action is taken against the employer. Under the new rule, employers receiving such a "no-match" letter would have to fire the worker or face possible civil fines and criminal penalties if the discrepancy isn't cleared up within 90 days.

The unions argued that past experience with no-match letters shows that they are often sent mistakenly because of clerical errors by employers or the government in recording numbers or because of name changes after a marriage, divorce or other reasons. The AFL-CIO also said Social Security was never intended to be a means of tracking down undocumented immigrants and is so cumbersome that legal employees will be unable to clear up discrepancies in 90 days. The unions argued that the 1986 law, which prohibited employers from knowingly employing illegal immigrants, required only a document check for newly hired workers, and did not authorize the government to order additional verification after hiring. Attorneys for the government argue that the new regulations are consistent with current law and merely give employers an additional way to resolve uncertainties about their employees' immigration status and avoid liability.

San Francisco Chronicle By Bob Egelko

[Editor’s Note: A summary and link to the regulations are below.]
NSBA School Law pages on "no match letter" regulations