Preliminary Injunction Issued: Court Blocks Government from Implementing Flawed Social Security “No-Match” Rule

October 10, 2007

Lauren Mendoza, AFL-CIO, (202) 637-5212
Maria Archuleta, ACLU, (212) 519-7808 or 549-2666
Stella Richardson, ACLU-NC, (415) 621-2493
Marielena Hincapié, NILC, (415) 845-3403

Court Blocks Government from Implementing Flawed Social Security “No-Match” Rule

SAN FRANCISCO — A federal judge issued a preliminary order today stopping the government from enforcing a new rule that would use Social Security records for immigration enforcement, ensuring that U.S. citizens and legal residents will not lose their jobs because of errors in the Social Security Administration (SSA) database. The order prevents any implementation — until the court makes a final ruling after trial — of a new Department of Homeland Security (DHS) rule punishing employers if they do not take action after receiving Social Security “no-match” letters.

U.S. District Court Judge Charles R. Breyer found that “the government’s proposal to disseminate no-match letters affecting more than eight million workers will, under the mandated time line, result in the termination of employment to lawfully employed workers. . . .” The judge also found that “if allowed to proceed, the mailing of no-match letters, accompanied by DHS’s guidance letter, would result in irreparable harm to innocent workers and employers.”

“This is a significant step towards overturning this unlawful rule, which would give employers an even stronger way to keep workers from freely forming unions,” said John Sweeney, president of the AFL-CIO. “More than 70 percent of SSA discrepancies refer to U.S. citizens.”

Today’s preliminary injunction comes as a result of a lawsuit filed in August by the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO), the American Civil Liberties Union (ACLU), the National Immigration Law Center (NILC), and the Central Labor Council of Alameda County along with other local labor movements. In the lawsuit, the groups charge that the misguided rule violates the law and workers’ rights, imposes burdensome obligations on employers, and will cause discrimination against workers who are perceived to be immigrants. Several other labor and business groups joined in the lawsuit to challenge the rule. Today’s ruling extends that prohibition indefinitely until the court issues a final decision in the case after trial.

The district court had temporarily halted the DHS rule shortly after the lawsuit was filed and blocked the government from sending notices of the new regulation to approximately 140,000 employers across the country.

For years, the SSA has sent “no-match” letters to employers if the name and Social Security information reported by a worker on a W-2 form does not match up with the information contained in SSA databases. The “no-match” letters were never considered reason to believe that an employee did not have permission to work in the U.S., and currently employers who receive “no-match” letters are not required to take any action. In fact, there are many innocent reasons for such discrepancies such as clerical mistakes, name changes due to marriage and divorce, and the use of multiple surnames that are common in many parts of the world.

“The judge saw the need to fully examine the wisdom of placing employees’ jobs in jeopardy because of the mess in our Social Security database, which is rife with errors,” said Scott Kronland of Altshuler Berzon LLP, who argued the case.

Under the new DHS rule, employers receiving “no-match” letters might be required to fire employees whose SSA discrepancies are not resolved within 93 days after the “no-match” letter is received. If the employer does not respond to a “no-match” letter, DHS may conclude that the employer had “constructive knowledge” that an employee was not authorized to work in the U.S. and prosecute the employer accordingly.

“The Bush administration showed a callous disregard for legal workers and citizens by adopting a rule that punishes innocent workers and employers under the guise of so-called immigration enforcement. The court exposed the new rule’s fatal flaw rule by recognizing that “no-match” letters are based on error-filled SSA records and that the administration’s about-face on the use of these records was improper. Instead of punishing citizens and legal workers, the administration should dedicate itself to enforcing the workplace wage and safety rights of all workers,” said Lucas Guttentag, Director of the ACLU’s Immigrants’ Rights Project and one of the lawyers in the case.

“We are pleased that the judge saw the need to stop this rule that would lead to increased exploitation and discrimination of workers,” added Marielena Hincapié, staff attorney and director of programs at NILC. “Although DHS wants to use the ‘no-match’ letters as an immigration enforcement tool, the DHS regulation would do little to decrease undocumented immigration. Instead, it will fuel the growth of off-the-books hiring by employers who would prefer to skip W-2 forms and instead pay employees with cash and as a result, sidestep basic workers’ protections. The ‘no-match’ letters will simply serve to undermine all workers’ labor rights.”

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, Kronland, and Hincapié, lawyers on the case include Stephen Berzon, Jonathan Weissglass, Linda Lye and Danielle Leonard of Altshuler Berzon LLP; Jonathan Hiatt, James Coppess and Ana Avendaño of the AFL-CIO; Jennifer Chang, Mónica 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.