In an important victory, the Ninth Circuit has held that the receipt by an employer of a Social Security “no-match” letter in which an employee’s Social Security number (SSN) is listed cannot by itself determine whether or not the worker is eligible to be employed in the United States.  The Social Security Administration (SSA) sends no-match letters to workers and employers in an attempt to correct discrepancies in SSA’s records that prevent workers from receiving Social Security credit for their earnings.

     In the case before the Ninth Circuit, Aramark Facility Services had appealed an arbitration award ordering the reinstatement of workers whose employment Aramark had terminated after they failed or were unable to correct their Social Security records within the time frames required by the company’s policy.  Aramark, the employer, argued that the workers’ failure to correct the records in the time allotted gave it “constructive knowledge” that they were undocumented and justified it in terminating the workers, notwithstanding a collective bargaining agreement that prohibited firings without just cause.  The court of appeals disagreed, ruling that a no-match letter alone is not “constructive notice” to an employer that workers whose SSNs are listed in it are undocumented, and that the workers’ failure to comply with Aramark’s requirements to correct the discrepancies was insufficient, in the circumstances of this case, to establish that Aramark had constructive knowledge that they were not employment-eligible.  In its opinion, the court reiterated the principle that constructive knowledge is to be narrowly construed in the immigration context and requires positive information of a worker’s undocumented status.  The court concluded that no-match letters “are not intended by the SSA to contain ‘positive information’ of immigration status, and could be triggered by numerous reasons other than fraudulent documents, including various errors in the SSA’s NUMIDENT database.”

     NILC submitted an amicus brief in this case and gave expert testimony during the arbitration process.  To obtain a copy of the amicus brief, contact Nora Preciado, employment policy attorney.