FOR IMMEDIATE RELEASE
Monday, November 15, 2010

CONTACT
Adela de la Torre, NILC, 213-674-2832, [email protected]

Court Issues Ruling in Martinez v. Regents of the University of California, California’s AB 540 Lawsuit

SAN FRANCISCO, Calif.  — This morning, the California Supreme Court issued its decision in Martinez v. Regents of the University of California. The ruling rejected a challenge to AB 540, a California law that allows students who have attended California high schools for three years and received their diploma or GED to pay in-state tuition rates at public colleges and universities in California. Analysis of AB 540 has found that 70 percent of the students covered by this law in the UC system are U.S. citizens or documented immigrants.

“As Californians, we know that it is in our interest to ensure that all of our youth, regardless of status, who attend and graduate from California high schools have access to affordable higher education,” said Tanya Broder, an attorney for the National Immigration Law Center, which filed an amicus brief in the case. “Recognizing the fundamental importance of post-secondary education and the valuable resource to the state that these students represent, the California Supreme Court today properly rejected an attempt to deny this opportunity to thousands of current and future talented students.  This decision should remind us that Californians are better served by rewarding, not punishing, our youth who work hard and succeed academically.”

Added Adey Fisseha, a NILC policy attorney, “Today’s decision also highlights a gap in federal immigration law: For thousands of undocumented young people who have grown up in the United States, there is no pathway to legal status to allow them to contribute fully to our society.  The DREAM Act, bipartisan legislation under consideration in Washington, would provide such a path to these bright young students.  Legislators on both sides of the aisle support a vote on the DREAM Act.  Democratic and Republican leadership should heed those calls and make this common-sense legislation a top priority this year.”

View the amicus brief in support of the Regents of the University of California filed by the National Immigration Law Center and the ACLU.

To speak with an expert about today’s decision or other issues affecting immigrant youth access to higher education, please call Adela de la Torre at 213-674-2832.

###

FOR IMMEDIATE RELEASE
July 10, 2009 (revised July 14, 2009)

Media Contact:
Adela de la Torre; (213) 674-2832

Symbolic Immigration Enforcement Measures Passed by the Senate Would Hurt All Workers

In debating a U.S. Dept. of Homeland Security (DHS) spending bill, the U.S. Senate proposed to add yet another level of expense and job uncertainty for all workers by approving a provision that would mandate that federal contractors use the flawed E-Verify program and by attempting to thwart DHS’s decision to rescind a flawed Bush administration rule regarding Social Security Administration (SSA) “no-match letters.” These programs simply have unacceptable database error rates, and mandating their use would unnecessarily place countless thousands of American workers at risk for job termination.

“Some policymakers fail to understand that E-Verify and SSA no-match letters will have a devastating effect on all American workers,” said Tyler Moran, employment policy director for the National Immigration Law Center. “Instead of offering practical solutions for our immigration system, the Senate is playing politics as usual by mandating costly and ineffective enforcement measures.”

Actions in the Senate this week, paired with the recent announcements by the Council of Foreign Relations, underscore the urgency both parties feel for Congressional action on comprehensive immigration reform. By mandating flawed verification programs, we risk American jobs as well as the country’s financial livelihood in a time of economic uncertainty.

FOR IMMEDIATE RELEASE
October 28, 2008

Groups Sue for Release of Government Documents Related to Local Immigration Raid

LOS ANGELES — A coalition of civil rights lawyers is suing federal immigration officials who have illegally failed to release information about reported racial profiling, intimidation and denial of access to counsel by workers detained during a huge workplace raid in Los Angeles.

On Tuesday, the National Immigration Law Center (NILC), the ACLU of Southern California and the National Lawyers Guild of Los Angeles filed a federal lawsuit asserting that the government’s lack of response violates the Freedom of Information Act.  The three groups first requested basic information from U.S. Immigration and Customs Enforcement and the Department of Homeland Security nearly seven months ago.  The government has failed to release a single document.

“The government has squandered an opportunity to allay community concerns about the manner in which it is conducting immigration raids.  If the government truly believes that it is conducting these raids in a humane and lawful manner, it should release the documents this lawsuit seeks,” said NILC staff attorney Karen Tumlin.

On February 7, federal immigration agents raided a Micro Solutions Enterprises manufacturing plant in Van Nuys.  Agents interrogated and detained well over 200 employees, though they only had arrest warrants for eight, raising concerns that workers were presumed guilty under the immigration laws based solely or primarily on their race/ethnicity.  The documents the government has failed to produce would shed light on agents’ conduct during the raid, including whether they adhered to their own policies concerning the manner in which workplace raids should be conducted and whether appropriate screening was done to determine whether detained individuals should be released to care for minor children or other dependants.

“The public has a right to know whether the immigration agents followed the law when conducting this massive worksite raid.  The government’s refusal to provide the information speaks volumes about its own confidence that it is complying with federal law and the Constitution,” said ACLU-SC Director of Immigrants’ Rights and National Security, Ahilan Arulanantham.

Immigration and Customs Enforcement has been under scrutiny for its aggressive tactics in conducting increasingly frequent workplace raids over the last two years.  In some cases, federal agents have separated mothers from nursing infants.  Last month, legislation was introduced in the U.S. Senate to set guidelines that would ensure immigration raids are conducted in a humane manner that does not trample on individuals’ civil rights or presume guilt based on skin color.

“We are pleased to represent NILC in this case, which stands for the fundamental principle that those enforcing the law must abide by it,” said Ann Robinson, an attorney at Gibson, Dunn & Crutcher LLP, which is serving as pro bono counsel for NILC in the lawsuit.

The lawsuit, National Immigration Law Center v. Department of Homeland Security, sues both the Department of Homeland Security, and its subagency, the U.S. Immigration and Customs Enforcement (ICE), which conducted the February 7, 2008, raid in Van Nuys.  The plaintiffs in lawsuit are:  the National Immigration Law Center, the ACLU of Southern California, and the National Lawyers Guild of Los Angeles.  The National Immigration Law Center is representing itself along with the law firm of Gibson, Dunn & Crutcher, which is serving as pro bono counsel for NILC.  The ACLU of Southern California is representing itself and the National Lawyers Guild of Los Angeles.  In addition to Arulanantham, Robinson, and Tumlin, other counsel in the case include:  Linton Joaquin and Nora Preciado of NILC;  Maurice Suh and Katherine Smith of Gibson Dunn; and Jennifer Pasquarella of the ACLU of Southern California.

# # #

MORE INFORMATION:
Complaint for Declaratory and Injunctive Relief, Case No. CV08-07092 (C.D. Cal., filed Oct. 28, 2008).

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.”

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.

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).

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.

# # #

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.

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).

FOR IMMEDIATE RELEASE
August 31, 2007

CONTACT
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.