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Civil Rights Coalition Charges that “No-Match” Rule Hurts U.S. Workers

FOR IMMEDIATE RELEASE
October 23, 2008

CONTACT 
Maria Archuleta, ACLU, 212-519-7808
Alison Omens, AFL-CIO, 202-637-5018
Nora Preciado, NILC, 213-674-2823

Civil Rights Coalition Charges That Finalized “No-Match” Rule Will Hurt American Workers and the U.S. Economy

Supplemental Final “No-Match” Letter Rule

WASHINGTON — The “no-match” rule reissued by the Department of Homeland Security (DHS) today will put the livelihoods of authorized workers — including U.S. citizens — at risk, have a devastating impact on the already suffering U.S. economy and lead to widespread discrimination in the workforce, according to a coalition of civil rights organizations.

The republished rule, which contains no real changes from the previous one issued, still improperly uses the notoriously flawed Social Security Administration (SSA) database and forces employers to fire workers if their names and Social Security numbers cannot be matched.

A federal court blocked the “no match” rule in October 2007, after the American Civil Liberties Union, the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) and National Immigration Law Center (NILC) filed a lawsuit against DHS. The lawsuit charged that the rule’s enforcement would put workers at risk of losing their jobs because the SSA database is rife with errors and would cause discrimination against workers who look or sound “foreign.” The court’s preliminary order blocking the rule continues to apply to the republished rule.

Previously, “no match” letters were never considered reason to believe that an employee did not have permission to work in the U.S. Indeed, the SSA’s own inspector general found that more than 70 percent of the discrepancies in the SSA database that could generate a “no match” letter belong to native-born U.S. citizens. Discrepancies between workers’ social security numbers and SSA records can result from many innocent factors including clerical errors, name changes due to marriage or divorce, or the common use of multiple surnames.

Studies have found that the proposed “no match” rule would have significant negative economic costs to employers and work-authorized immigrants. A study commissioned by DHS estimates that 3.9 million lawful workers will be the subject of a “no match” letter. An economic analysis commissioned by the U.S. Chamber of Commerce and authored by Richard B. Belzer, who holds a Ph.D. in public policy from Harvard University, found that more than 165,000 lawful U.S. workers could lose their jobs because of their inability to resolve discrepancies with the SSA. The cost to employers will be at least $1 billion per year.

The statements below can be attributed to the following participants in the lawsuit:

Lucas Guttentag, Director of the ACLU Immigrants’ Rights Project:
“Rather than safeguard jobs in perilous times, the Bush administration has chosen to threaten the livelihoods of millions of American workers by republishing a discredited rule instead of fixing the Social Security database. If the goal is to protect workers, the administration should enforce our overtime, labor and discrimination laws, stop worker exploitation and put teeth into the existing rules against abuse and exploitation. Those are things that would protect all workers and punish businesses that violate the law.”

Marielena Hincapié, Executive Director of NILC:
“The DHS has reissued the same rule with utter disregard for the impact it will have on work-authorized immigrants who will lose their jobs due to the inaccuracies in the SSA database, which still haven’t been fixed. The rule will not have an impact on undocumented immigration, which can only be addressed through meaningful immigration reform. American workers and the U.S. economy are struggling; good employers will lose out at a time when our economy can’t sustain further job loss. Any efforts to target bad employers that exploit undocumented workers require strong labor law enforcement, not a flawed rule like the one DHS has reissued.”

John Sweeney, President of the AFL-CIO:
“No matter how many times the administration repackages this rule, relying on the error-filled Social Security database is a recipe for disaster for both American workers and the economy. The current administration has chosen to ignore these realities and forge ahead with a harmful policy, leaving a disastrous parting gift to our new leadership. Rather than punishing and causing discrimination against workers who will be the innocent victims of a fatally deficient database, the administration should abandon this rule unless it can guarantee that no American workers will lose their jobs.”

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Ashley Furniture Wrong in Restricting Speech

Ashley Furniture Wrong in Restricting Employees’ Speech Regarding “No-Match” Letters

MILWAUKEE (Oct. 2, 2008) — In an important ruling, Judge James Kennedy of the National Labor Relations Board has struck down a directive of Ashley Furniture Industries of Arcadia, Wisconsin, that workers not discuss among themselves or with outside groups the company’s procedures — including threats that workers would be fired — with respect to Social Security Administration “no-match” letters received by the company.  The decision comes almost a year after the company backed away from the dismissals.

That a worker is listed in a no-match letter does not mean that the worker is unauthorized to be employed in the U.S.; nevertheless, the Bush administration is trying to use the letters as an immigration enforcement tool — a means of pressuring employers to reverify noncitizen employees’ employment eligibility.  The administration’s strategy has been blocked by a federal district court, which expressed concern that it would negatively impact a large number of U.S. citizens.

“As soon as details of proposed new [no-match letter-related] federal rules emerged, Ashley’s attorneys panicked and rushed to implement those procedures prematurely — procedures which the federal court blocked after hearing evidence from labor and civil rights groups showing that they were deeply flawed,” said Christine Neumann-Ortiz, Director of Voces de la Frontera, the Milwaukee workers’ rights center that took forward the Ashley employees’ complaint.  “By threatening firings and banning communication between workers, the company created a climate of fear.”

Workers broke their silence and called for help only as threatened dismissal dates drew near.  When they did, Voces de la Frontera and its attorney, Mark Sweet, made clear to Ashley that its policies were inconsistent with federal regulations concerning Social Security number documentation and verification.  Ashley withdrew the threats in October 2007.

Sweet filed unfair labor practice charges against Ashley Furniture for restricting the rights of workers to discuss among themselves and with Voces de la Frontera issues that could affect their continued employment.

“Judge Kennedy’s ruling affirms the right of all workers to speak freely about their wages, hours and working conditions free from employer restrictions and interference,” said Sweet following the ruling.  “This decision reinforces fundamental labor policy that has existed for over 70 years.”

Neumann-Ortiz sees the Ashley case is part of a larger picture.  “This is not an isolated example of an employer not following the law.  We have seen many employers using no-match letters to threaten workers when they have no basis to do so.  Unless there is a change in the law, employers cannot simply demand that workers produce new documents or threaten termination.”

She emphasized that no-match letters frequently are “triggered” by simple typing and database errors.  The letters “were created by the Social Security Administration to correct such problems, not as a tool to harass workers.”


More information:

Voces de la Frontera (www.vdlf.org) is a nonprofit organization with offices in Milwaukee and Racine, Wisconsin.  It is a leading voice in the national immigrants’ rights movement, and its current activities include a major campaign to increase civic participation.

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Back Pay Ordered for Unauthorized Workers

Employer That Knowingly Violated I-9 Requirement Ordered to Pay “Back Pay”

Immigrants’ Rights Update, Vol. 21, Issue 6, July 20, 2007 (revised June 12, 2008)

By Monica Guizar, Employment Policy Attorney

An administrative law judge (ALJ) in New York has ordered a back pay award to seven workers who had been fired by their employer, Mezonos Maven Bakery, for engaging in concerted activity by complaining together about their supervisor’s behavior towards them.  Some of the seven workers had been employed by Mezonos for nearly 10 years.  During this time, the employer had not asked some of them to provide employment authorization documents and had never completed I-9 employment eligibility verification forms for any of them.

The workers filed an unfair labor practice charge with Region 29 of the National Labor Relations Board (NLRB), which then issued a complaint against Mezonos charging that the employer’s action violated the National Labor Relations Act.  The parties entered into a stipulated settlement, and the NLRB issued a decision and order directing Mezonos to offer unconditional reinstatement and make the workers whole for any lost wages.

Under the order, any disputes over the amount of wages owed were subject to a compliance proceeding.  The regional director issued a compliance specification laying out the back pay amounts owed for each of the seven employees.  Mezonos submitted an answer to the specification, stating that it could not offer reinstatement or pay back pay to the seven workers because it believed that they were undocumented and that therefore the precedent set by the U.S. Supreme Court in Hoffman Plastic Compounds, Inc. v. NLRB, 437 U.S. (2002), precluded any offer of reinstatement or back pay award.  (For a summary of the decision in Hoffman, see “Supreme Court Bars Undocumented Worker from Receiving Back Pay Remedy for Unlawful Firing,” Immigrants’ Rights Update, Apr. 12, 2002.)

The issue before the ALJ was whether the workers were entitled to back pay, given that their employer, assuming that they were undocumented, hired and retained them in violation of the immigration statute’s provision that requires employers to verify the employment eligibility of new hires.  The ALJ had to decide whether the workers were entitled to back pay given that there was no evidence in the record that they were undocumented or that they had engaged in fraud or criminal activity.

In awarding back pay to the workers, the ALJ distinguished the Hoffman decision and stated that the “two essential facts in Hoffman” are absent in this case.  Those two facts are “(a) that Castro [the original complainant in Hoffman] criminally violated [the Immigration Reform and Control Act (IRCA)] by presenting fraudulent documents to his employer and (b) that employer Hoffman did not violate IRCA but hired Castro with no knowledge that he was undocumented.”  The seven fired Mezonos workers never presented false documents to their employer and did not violate IRCA, but the ALJ found that their employer had violated IRCA “by knowingly hiring them and continuing their employment without evidence that they were documented.”

The ALJ further found that the Supreme Court’s concerns that an award of back pay to the complainant in Hoffman would “condone criminal conduct by an employee” and that the employee was the “wrongdoer” are not applicable to the facts in the Mezonos case.  Here the “wrongdoer” is the employer, who “should not be permitted to evade its liability for back pay,” the ALJ found.  He therefore ordered a back pay award and found that the award does not conflict with federal immigration law or with the Supreme Court’s decision in Hoffman.

NILC is co-counsel in this matter, helping to represent the seven workers.  The employer, Mezonos Bakery, filed exceptions to the ALJ’s decision and the matter is pending before the NLRB.

Mezonos Maven Bakery, Inc. and Puerto Rican Legal Defense and Education Fund, 29-CA-25476, Steven Davis, ALJ (Nov. 1, 2006).

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AZ Employer Sanctions Law Illegal, Coalition to Argue

FOR IMMEDIATE RELEASE
November 14, 2007

Civil Rights Coalition to Argue in Court That Arizona Employer Sanctions Law is Illegal

Lawsuit alleges new state law will conflict with federal immigration law and the U.S. Constitution

PHOENIX — Today in U.S. District Court in Phoenix, a coalition of civil rights groups argued that the so-called Legal Arizona Workers Act illegally punishes businesses by improperly requiring their participation in a flawed work authorization verification database, and would lead to discrimination against workers who are perceived as being foreign born.

The Act, which is scheduled to take effect January 1, introduced a new state law that regulates employment based on work authorization status – even though there is a comprehensive federal law on the same topic. The Act unlawfully seeks to impose sanctions far beyond what the federal government allows by completely closing down any business that, according to the state, has committed two violations in a three-year period. In addition, the Act requires all Arizona businesses to check their employees’ work authorization status by using the flawed federal Basic Pilot program (recently renamed e-Verify). The Basic Pilot system, which the federal government established as a voluntary, experimental, and temporary system to test the concept of electronic employee verification, is rife with errors and frequently leads to problems for lawful workers. Congress has repeatedly refused to make the system permanent or mandatory.

The ACLU, the ACLU of Arizona, the National Immigration Law Center (NILC), the Mexican American Legal Defense and Educational Fund (MALDEF), and the law firm of Altshuler Berzon filed the lawsuit challenging Arizona’s new law in federal court in September on behalf of two Arizona organizations, Chicanos Por La Causa and Somos America. The coalition charges that the new law is preempted by federal immigration law and the U.S. Constitution. A coalition of business groups has also filed a suit challenging the law. At today’s hearing, Altshuler Berzon attorney Jonathan Weissglass will argue on behalf of the coalition and address both suits.

“The U.S. government hasn’t made the Basic Pilot system mandatory because the database’s information is highly unreliable and it can cause lawful workers to lose jobs and job opportunities,” said ACLU Immigrants’ Rights Project staff attorney Omar Jadwat. “Governor Napolitano herself publicly acknowledged that there were serious problems with making Basic Pilot mandatory when she signed the Act. Arizona’s leaders should be ashamed that they’ve passed a law bound to cause harm to innocent workers and businesses.”

The Basic Pilot system has been plagued with problems, including failing to identify legally authorized workers due to its reliance on the error-ridden databases of the Social Security Administration (SSA) and the Department of Homeland Security. The private research corporation Westat found that one in ten legally authorized workers are initially categorized by Basic Pilot as ineligible. Foreign born workers, including naturalized citizens, are more than 30 times more likely than native-born U.S. citizens to be incorrectly identified as ineligible.

“Rather than run the risk of being shut down forever, employers will simply avoid hiring people they think are immigrants, authorized or not,” said Kristina Campbell, MALDEF staff attorney. “The United States is supposed to be a country where there is equal opportunity, but this new law says that for jobs in Arizona, Latinos regardless of their actual citizenship status need not apply.”

Current federal law regulating the employment of unauthorized workers has extensive antidiscrimination provisions, protections for employers who unknowingly hire unauthorized workers, and a graduated series of penalties; however, the Arizona employer sanctions law has none of these safeguards.

“Arizona’s statute attempts to override national law and policy on the employment of immigrants,” said Linton Joaquin, Executive Director of NILC. “If states like Arizona can strike out on their own and pass their own immigration laws, workers and employers alike would face a patchwork of conflicting and incompatible requirements based on local politics and conditions, and it would be impossible to have a meaningful national policy.”

Lawyers on the case include Wiessglass and Stephen Berzon of Altshuler Berzon; Campbell and Cynthia Valenzuela of MALDEF; Joaquin, Monica T. Guizar and Karen C. Tumlin of NILC; Daniel Pochoda of the ACLU of Arizona; and Jadwat, Lucas Guttentag and Jennifer C. Chang of the ACLU Immigrants’ Rights Project.

# # #

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

FOR IMMEDIATE RELEASE
October 10, 2007

CONTACT
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

PRELIMINARY INJUNCTION ISSUED
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.

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Lawsuit Challenges Arizona’s Employer Sanctions Law

Lawsuit Challenges Arizona’s Employer Sanctions Law as Being in Conflict with Federal Law

Immigrants’ Rights Update, Vol. 21, Issue 8, October 5, 2007

By Karen Tumlin, NILC Skadden Fellow

A lawsuit filed in a federal court challenges Arizona’s new law that creates a state scheme of penalties for employers that hire unauthorized workers, even though these employers have complied with the applicable federal law.  The Legal Arizona Workers Act (HB 2779) mandates every employer in the state to join a temporary and voluntary federal program, the Basic Pilot program (recently renamed “E-Verify”) to verify the employment eligibility of each new hire.  In addition, the Arizona law threatens employers with permanent loss of business licenses based on new, invalid state requirements.

The lawsuit was brought in Arizona on behalf of two organizations in the state, Chicanos Por La Causa (CPLC) and Somos America, which are concerned that the law will adversely impact Arizona workers and employers.  CPLC, one of the state’s largest nonprofit employers, expressed concern about the law’s requirements on it as an employer and also about the harmful and discriminatory impact the law would have on its employees, particularly foreign-born workers and workers of color.  Specifically, CPLC alleges that as a result of the law, foreign-born workers and other workers of color will be less likely to be hired, more likely to lose their jobs, and in many cases will need to take additional steps to prove their employment eligibility.  CPLC also is concerned that it will have to divert resources from its programmatic work in order to assist workers in the state who are harmed by the new law.

If implemented, the new law will drastically increase the number of employers using the federal Basic Pilot/E-Verify program, a deeply flawed program that far too often produces erroneous results, even at its current relatively low level of participation.  Basic Pilot/E-Verify has been plagued by problems, including failing to identify legally authorized workers due to its reliance on the error-ridden databases of the Social Security Administration and the U.S. Dept. of Homeland Security (DHS), and the DHS’s lack of resources to monitor employer compliance with the program’s rules.  (For more on the program’s problems, see Basic Pilot/E-Verify: Not a Magic Bullet (Sept. 2007).)  Currently, the program is set to expire in 2008, and nationwide only about 23,000 employers are registered to use it.  Moreover, many of these may not actually be using the program.  Earlier this year, DHS reported that 17,000 employers were using Basic Pilot/E-Verify but that only half were active users.  If implemented beginning Jan. 1, 2008, as scheduled, the Arizona law would require an estimated 150,000 Arizona employers to join Basic Pilot/E-Verify, an infusion of new participants that can only exacerbate the already troubled program’s serious deficiencies.

The lawsuit challenges the Arizona law as an unconstitutionally preempted regulation of immigration in violation of the Supremacy Clause of the U.S. Constitution.  The power to regulate immigration is an exclusively federal power.  Because the federal government has established a comprehensive system of laws and procedures relating to the employment of immigrants, state attempts to regulate this area, including state attempts to create penalty schemes for employers that violate federal law, are preempted.  The state law’s requirement that employers use Basic Pilot/E-Verify, a program that, as authorized by Congress, is voluntary and temporary, runs afoul of the Constitution.

The Arizona law is an attempt to override national law and policy on the employment of immigrants, which carefully balances the national interest and includes substantial antidiscrimination protections for foreign-born and national origin minority workers.  State employer sanctions policies, such as Arizona’s, lack this careful balancing embodied in the federal law.  Should laws such as Arizona’s be allowed to stand, state lawmakers across the country would feel themselves empowered to construct immigration laws for their own states, resulting in diminished antidiscrimination protections for noncitizen workers.  For example, the Arizona law creates perverse incentives for employers to discriminate against workers who they believe “appear foreign” rather than risk the fines and penalties associated with a failure to comply with this law.  If the law is allowed to take effect, many employers will fire workers they believe to be foreign or refuse to hire them in the first place out of fear that these workers are more likely to put the employer at risk for sanctions under the state scheme.

The lawsuit also challenges the state law as a violation of the Constitution’s 14th Amendment because it deprives workers and employers of liberty and property without due process of law.  The state law requires the Arizona attorney general or county attorneys, as appropriate, to investigate all complaints that an employer is knowingly or intentionally employing unauthorized noncitizen workers.  Under this provision, the attorney general or a county attorney would be required to attempt to verify the suspect workers’ employment authorization by using a federal inquiry procedure outlined in 8 U.S.C. sec. 1373(c), a procedure that has the capacity to verify only the immigration status, but not the employment authorization status, of individuals.  The law, however, does not require that any notice of this investigation be given to the affected employer or employee.  If, after investigating, the attorney general or county attorney finds that the employer knowingly or intentionally hired unauthorized workers, a penalty established by the state law may be imposed, which may include denying the employer the ability to operate a business and requiring that the identified workers be fired.  By contrast, Congress put in place a much more stringent system for determining whether employers have knowingly hired unauthorized workers.  In addition to being federally preempted, Arizona’s deficient scheme violates due process.  Quite simply, due process requires more procedural protections than the Arizona law affords before denying employers the ability to operate a business and lawful employees the ability to work.

On Sept. 4, NILC and its co-counsel filed a motion for a preliminary injunction to stop the state from implementing the state law when it is scheduled to take effect, on Jan. 1, 2008.  In addition, NILC sought to stop the state from mailing letters on Oct. 1, 2007, to every state employer describing the act’s requirements, including that each employer in the state join Basic Pilot/E-Verify.

On Sept. 14, 2007, Judge Neil V. Wake consolidated the lawsuit brought on behalf of Chicanos Por la Causa and Somos America with a separate lawsuit brought by a coalition of business and trade associations, Arizona Contractors Association v. Napolitano (D. Ariz, filed July, 2007).  (For a copy of the complaint in this case, click here.)  The lawsuit filed by the trade association plaintiffs also alleges that the state law is federally preempted and violates due process.  In addition, this lawsuit includes claims that the law violates the Commerce Clause of the U.S. Constitution, separation of powers under the Arizona Constitution, and the Fourth Amendment’s protection from unreasonable search and seizures.  At the Sept. 14 hearing, Judge Wake declined to set a schedule that would allow the court to decide on the plaintiffs’ preliminary injunction motion before the October letter-mailing.  Instead, the judge set a briefing schedule to decide the plaintiffs’ preliminary injunction motions along with the merits of the case.

The lawsuit on behalf of CPLC and Somos America was filed jointly by the law firm of Altshuler Berzon, the American Civil Liberties Union (ACLU) of Arizona, the ACLU Immigrants’ Rights Project, the Mexican American Legal Defense and Educational Fund (MALDEF), and NILC.  The legal team is comprised of Stephen Berzon and Jonathan Weissglass of Altshuler Berzon; Daniel Pochoda of the ACLU of Arizona; Lucas Guttentag, Jennifer Chang, and Omar Jadwat of the ACLU Immigrants’ Rights Project; Kristina Campbell and Cynthia Valenzuela of MALDEF; and Linton Joaquin, Monica Guizar, and Karen Tumlin of NILC.

Chicanos Por La Causa, Inc. v. Napolitano,
No. 07-cv-01684 (D. Ariz, filed Sept. 4, 2007).

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Court Halts Gov’t from Implementing Flawed SSN Rule

FOR IMMEDIATE RELEASE
August 31, 2007

CONTACT
Ana Avendaño, AFL-CIO, (202) 637-3949; aavendan@aflcio.org
Laurie Gindin Beacham, ACLU, (212) 519-7811; media@aclu.org
Stella Richardson, ACLU-NC, (415) 621-2493; srichardson@aclunc.org
Marielena Hincapié, NILC, (213) 674-2812; hincapie@nilc.org

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.

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NILC Challenges New Homeland Security Rule

FOR IMMEDIATE RELEASE
August 29, 2007

CONTACT
Ana Avendaño, AFL-CIO, (202) 637-3949; aavendan@aflcio.org
Laurie Gindin Beacham, ACLU, (212) 519-7811; media@aclu.org
Stella Richardson, ACLU-NC, (415) 621-2493; srichardson@aclunc.org
Marielena Hincapié, NILC, (213) 674-2812; hincapie@nilc.org

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

SAN FRANCISCO — 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, 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 records.

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 non-citizens.

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 cannot resolve the discrepancy by the deadline, DHS requires the employer to take “reasonable steps” that might include firing the employee.

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, 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.

For a copy of the lawsuit visit www.aclu.org or www.aclunc.org, and www.nilc.org.

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H-2B Guestworkers Win Landmark Decision

FOR IMMEDIATE RELEASE
May 17, 2007

CONTACT
Adela de la Torre, NILC, (213) 674-2832; delatorre@nilc.org
Tracie Washington, Louisiana Justice Institute, (504) 390-4642
Mary Bauer, Southern Poverty Law Center (334) 296-0728
Colette Tippy, New Orleans Workers’ Center for Racial Justice (504) 881-6550

H-2B Guestworkers Win Landmark Decision in Suit against Luxury Hotel Chain

Ruling is one step in the struggle to end modern-day slavery, say victorious plaintiffs

NEW ORLEANS — After more than a year of mass meetings and company intimidation of workers, 82 Latin American guestworkers obtained a precedent-setting legal victory this week that provides relief to tens of thousands of foreign guestworkers on H-2B visas who typically are forced to pay exorbitant fees to obtain low-wage, temporary jobs in the United States.

U.S. District Judge Eldon E. Fallon, of the Eastern District of Louisiana, ruled that nonagricultural guestworkers who come to the U.S. under H-2B visas are entitled to the same protection under the federal Fair Labor Standards Act (FLSA) that all other workers in the United States enjoy. The judge has not ruled on damages.

The defendant in the case, hotel tycoon F. Patrick Quinn III, president of Decatur Hotels LLC, and hundreds of other employers across the hurricane-wracked Gulf Coast and throughout the nation are taking advantage of guestworkers to obtain cheap labor. Many look the other way as guestworker recruiters rob migrant workers of hundreds of thousands of dollars.

The ruling in Castellanos-Contreras, et al., v. Decatur Hotels, LLC, et al., is an important precedent for the more than 100,000 H-2B guestworkers who enter the United States legally each year and serves as a strike against a system that members of the newly formed Alliance of Guestworkers for Dignity describe as “modern-day slavery.”  The Alliance is a guestworker-led organization dedicated to challenging the rampant abuse in the guestworker program and to fighting for the rights of all workers in post-Katrina New Orleans.

Lured by false promises made by aggressive labor recruiters working closely with Quinn, the Decatur workers incurred great debts to obtain New Orleans hotel jobs in the wake of Katrina, only to find themselves held captive by a visa program that ties them to one employer. The workers, who were economically desperate in their home countries, sought better opportunities in the United States and plunged their families into debt when they each had to pay labor recruiters between $3,500 and $5,000.

“I worked in Mr. Quinn’s hotels for next to nothing because I had to earn enough money to make back what I paid to get here,” said Jose Sanchez, plaintiff in the case and worker leader in the Alliance of Guestworkers for Dignity. “Even though I was so tired at the end of the day, I would go to the meetings at night because I knew that this was important not just for our group, but for all guestworkers in the U.S.”

The plaintiffs are represented by the Southern Poverty Law Center, National Immigration Law Center and civil rights attorney Tracie Washington, president of the Louisiana Justice Institute.
They are working closely with the Alliance of Guestworkers for Dignity, a project of the New Orleans Workers’ Center for Racial Justice.

“This is a tremendous victory for all workers of color in New Orleans who for too long have been exploited by unscrupulous employers in the service industry,” said Tracie Washington. “We will continue to fight on their behalf until we achieve true worker justice in New Orleans.”

As part of a larger guest worker organizing campaign spearheaded by the Alliance of Guestworkers for Dignity, workers from Bolivia, Peru and the Dominican Republic met secretly over three months as they organized a meeting to hold Mr. Quinn accountable but he refused to meet their main demands which included the reimbursement of the money they paid to labor recruiters in order to work for him.  As a result of his refusal, they filed the lawsuit in August 2006 alleging that defendants violated the FLSA when the company failed to reimburse them for the inflated costs of their trip to New Orleans, including airfare, visa processing costs and other travel expenses. Following Hurricane Katrina, when the defendants were housing Katrina survivors, most of whom had just lost their jobs, the defendants filed an application with the U.S. Department of Labor (DOL) to bring in guestworkers, certifying that there were no U.S. workers willing or able to do the job. Decatur Hotels, aiming to find the cheapest labor possible, used a chain of unscrupulous recruiters to import an estimated 300 guestworkers with promises of 40-hour workweeks and plenty of overtime. Instead, those workers found themselves working about 25 hours a week and sometimes far less, with no way to pay back the debt they had incurred.

“The systematic abuse of guestworkers, who are mostly poor, begins in their home countries, where they are forced deeply into debt to pay outrageous fees simply for the right to work for less than a year at a time in the United States,” said Mary Bauer, director of the Southern Poverty Law Center’s Immigrant Justice Project. “This puts them in a desperate situation if their employer cuts their hours or abuses them in other ways, because under U.S. law, they cannot seek alternative employment.”

This decision comes at a critical time as Congress and the White House are designing an expanded temporary worker program as part of larger immigration legislation.

“As President Bush and Congress seek to expand the temporary worker program, this and other organizing efforts by guestworkers across the Gulf Coast have unveiled the brutal realities of the H-2B visa program,” said Saket Soni, Lead Organizer of the New Orleans Workers’ Center for Racial Justice.

Attorney Marielena Hincapié, director of programs with the National Immigration Law Center, praised the workers who “organized themselves and courageously came forward to demand that they enjoy the same protections under U.S. labor laws.  In doing so, they have exposed the almost nonexistent monitoring by the DOL and the lax labor law enforcement that plagues the current H-2A and H-2B visa system.”

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Guest Workers Charge Racial Exploitation

FOR IMMEDIATE RELEASE:
August 16, 2006

CONTACT:
Adela de la Torre, NILC, (213) 674-2832; delatorre@nilc.org
Tracie Washington, Louisiana Justice Institute, (504) 390-4642
Mary Bauer, Southern Poverty Law Center, (334) 296-0728
Saket Soni, New Orleans Worker Justice Coalition, (773) 550-9339

Guest Workers Charge Racial Exploitation, File Federal Suit Against Luxury Hotel Chain in New Orleans

One Year After Katrina, Guest Workers Expose Hotelier’s Scheme To Profit From Immigrant Labor While Excluding African Americans

NEW ORLEANS — Latin American workers brought a federal lawsuit today against one of New Orleans’ wealthiest hotel owners, who lured them through false promises and charged them thousands of dollars in fees to fill jobs held by New Orleanians prior to Hurricane Katrina.

Eighty-two guest workers allege that Decatur Hotels, LLC and its president, F. Patrick Quinn III, violated the Fair Labor Standards Act when the company failed to reimburse them for the exorbitant fees paid to aggressive labor recruiters working as agents of the hotel chain. Decatur
owns about a dozen luxury hotels in New Orleans and is one of the largest locally owned hotel chains in Louisiana.

To pay labor recruiters in their home countries, workers from Peru, Bolivia and the Dominican Republic plunged their families into debt. Recruiters charged between $3,500 and $5,000 to bring workers to New Orleans under the federal government’s H-2B “guest worker” program.

“Four thousand dollars is a lot of money in Peru,” said Humberto Jimenez, one of the hotel workers. “I mortgaged my house to work for Patrick Quinn. I came here to make enough money to see my child through college. If I had known the truth I would never have come.”

Recruiters under Quinn’s employ promised workers 40 hours of work per week and plenty of overtime. Instead they found themselves working about 25 hours a week, sometimes far less. “They told me I would find the American dream. I found no dream here. All I have here is debt and nightmares,” said one worker, holding a pay stub. “I earned $18.08 in two weeks. What kind of dream is that?”

Under current immigration law these guest workers are bound to their employer and unable to legally work for anyone else. “They’re on a dead-end road,” said Mary Bauer, attorney for the Immigrant Justice Project of the Southern Poverty Law Center. “Their profound debt makes them desperate to work – but Decatur doesn’t give them enough hours. And if they switch jobs, they’re breaking the law. In effect, they are captive workers in a situation of virtual debt peonage.”

Said Teresa Ortiz, another worker, “It’s modern-day slavery. What are my options? I go home to Bolivia, poorer than when I got here and deeper in debt. Or I break the law to find another job.”

Tracie Washington, a local civil rights attorney, said, “This guest worker program is a continuation of the racial exploitation that began with slavery in this country. It’s corporatedriven. Decatur profits from it. And it’s state-sponsored. The Department of Labor signs off on it.”

To recruit these guest workers, Decatur had to certify to the U.S. government that it could not find U.S. workers to fill these jobs. Indeed, in its request for labor certification, Decatur claims to “have offered work to hurricane evacuees” but that “no one applied.” In a recent meeting with Quinn, guest workers asked for proof that Decatur recruited among African American Katrina evacuees. “He said he would not give us proof,” said Luis Chavez. “He has none. When I started work I said to my manager. ‘This is New Orleans – why are there no Black people working here?’  The manager said, “Because Black people don’t like to work.’ ”

“Guest worker programs are wedge policies that divide African Americans and immigrants,” said Saket Soni of the New Orleans Worker Justice Coalition. “At a time when the unemployment rate in the New Orleans metro area is 7.2 percent these guest workers are lured here and locked into exploitation. Meanwhile African American survivors are locked out of the hotel industry even as they struggle to return home and regain their lives a year after Katrina.”

This competition over jobs is being fueled by employers like Decatur and the government agencies that have failed to enforce labor laws. “These courageous workers are exposing guest worker programs as an opportunity for predatory employers to seek out and exploit cheap labor,” said Marielena Hincapie, Director of Programs at the National Immigration Law Center. As guest worker programs are increasingly seen as the answer to future migration, Hincapie cautioned against expansion of a historically flawed system.

“The solution is for all workers to be afforded decent work opportunities with a living wage in the just reconstruction of the Gulf South,” said Tracie Washington.

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