Court Halts Gov’t from Implementing Flawed SSN Rule

August 31, 2007

Ana Avendaño, AFL-CIO, (202) 637-3949; [email protected]
Laurie Gindin Beacham, ACLU, (212) 519-7811; [email protected]
Stella Richardson, ACLU-NC, (415) 621-2493; [email protected]
Marielena Hincapié, NILC, (213) 674-2812; [email protected]

Court Halts Government from Implementing Flawed Social Security No-Match Rule

Judge issues order after AFL-CIO, ACLU, and NILC file lawsuit

SAN FRANCISCO, Calif. — A federal judge today issued an order temporarily blocking the government from implementing a new Department of Homeland Security (DHS) rule that would cause U.S. citizens and other authorized workers to lose their jobs, and that would illegally use error-prone Social Security records as a tool for immigration enforcement.  The judge’s order also stops the Social Security Administration (SSA) from beginning to send notices on Tuesday to approximately 140,000 employers across the country notifying them of the new rule, which would impact approximately eight million workers.

The order comes as a result of a lawsuit filed on Wednesday by 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.  A hearing on the groups’ request to permanently bar the implementation of the DHS rule is scheduled for October 1 before U.S. District Court Judge Charles Breyer.

“We are very pleased that the judge recognized the need to halt the implementation of this ill-advised DHS rule,” said John Sweeney, President of the AFL-CIO.  “Employers have historically used SSA ‘no-match’ letters to exploit workers, and this rule would only give them a stronger pretext for doing more of the same.”

In the lawsuit, the groups charge that the misguided rule violates the law and workers’ rights and imposes burdensome obligations on employers who receive SSA “no-match” letters that inform them of alleged discrepancies between employee records and the SSA database.

U.S. District Judge Maxine M. Chesney found that the groups “raised serious questions as to whether the new Department of Homeland Security rule is inconsistent with statute and beyond the statutory authority of the Department of Homeland Security and the Social Security Administration.”

“The court found the balance of hardships tips sharply in favor of staying the rule while it is being challenged,” said Scott A. Kronland of Altshuler Berzon LLP, who argued at today’s hearing.  “We are confident we will prevail when the court hears the case on the merits.”

Currently, employers who receive “no-match” letters stating that their employees’ identification documents do not match SSA records are not required to take any action.  The new DHS rule would impose liability on employers 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 percent — belong to native-born U.S. citizens.  Under the DHS rule, employers might be required to fire employees whose erroneous SSA records are not fixed within 90 days after the “no-match” letter is sent.  The DHS rule would threaten jobs of U.S. citizens and other legally authorized workers simply because of errors in the government’s inaccurate Social Security earnings database.

“This is a crucial and significant first step in challenging this rule, which would be a bureaucratic and costly nightmare for employers and many U.S. citizens and other legally authorized workers,” said Lucas Guttantag, Director of the ACLU’s Immigrants’ Rights Project.

“Today’s ruling takes us one step closer to an eventual finding that the DHS rule is unlawful.  This is a great Labor Day victory for the millions of workers who would have been affected by no-match notice letters being sent out next week,” said Marielena Hincapié, Staff Attorney and Director of Programs at NILC.

Today’s order was handed down 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, M nica 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.