Thread: Ag: No-match suit doesn't excuse responsibility

From Ag Alert magazine:

No-match suit doesn't excuse responsibility
Issue Date: September 12, 2007

By Christine Souza
Assistant Editor

As they were preparing for its repercussions, agricultural groups in California and across the country were pitched a curve ball on Aug. 31, when a federal judge temporarily blocked the implementation of the Department of Homeland Security's new social security number "no-match" rule.

But agriculturists familiar with the issue cautioned that the impact of the court's action on employers is limited.

"The judge's restraining order doesn't necessarily stop the clock from running on employers. It does not automatically mean DHS will not send out no-match letters," said Luawanna Hallstrom, California Farm Bureau Federation labor committee chair. "The court order might delay those letters going out, but it in no way means employers are off of the hook."

The order in the lawsuit, filed in the U.S. District Court for the Northern District of California, blocks the rule's implementation until Oct. 1. At that time, Judge Charles Breyer will consider whether to grant a preliminary injunction that would block the rule until a trial is held.

Brought by various labor organizations led by the AFL-CIO and represented by American Civil Liberties Union attorneys, the suit charges that the no-match rule violates the law and workers' rights and imposes burdensome obligations on employers who receive Social Security Administration letters informing them of alleged discrepancies between employee records and SSA's database.

Judge Maxine Chesney found that the labor groups "raised serious questions as to whether the new DHS rule is inconsistent with statute and beyond the statutory authority of the DHS and the SSA."

Her order also stops the SSA from mailing no-match notices that include a DHS letter advising employers on how they should respond to the notices. About 140,000 employers across the country, involving some 8 million workers, were set to get those packets. However, the order does not appear to bar SSA from mailing its notices without the DHS guidance letter, said CFBF Associate Counsel Carl Borden.

"While it's unknown whether SSA will mail no-match letters by themselves, I suspect SSA will simply wait for the court's next ruling, which could lift the hold," Borden said.

A no-match letter states that the combination of name and Social Security account number submitted by an employer to SSA for an employee does not match SSA records. Each spring and summer, the SSA mails no-match letters to employers who filed more than 10 Internal Revenue Service forms W-2 for the prior year that result in a no match on the Social Security number.

This year, however, at DHS's request, the SSA postponed the mailings. DHS requested that because it wanted to see if Congress would pass immigration-reform legislation. When that didn't happen, DHS issued its final no-match rule and told SSA to get ready to mail no-match letters.

But despite claims by government officials that they have not yet been mailed, Borden said he has received information that the SSA recently mailed no-match notices and at least some with the DHS guidance letters.

The rule's summary says if a discrepancy involving an employee is not resolved and the employee's identity and work authorization cannot be verified by a reasonable procedure within 93 days after the employer received the no-match letter, then the employer should fire the employee. Otherwise, Borden said, the employer risks a DHS finding that the letter gave the employer constructive knowledge that the employee was not work-authorized and, by continuing to knowingly employ an unauthorized person, the employer broke the law.

Borden addressed members of the CFBF Labor Policy Recommendation Committee last Wednesday about the issue and recommended that employers wanting to reduce their risk of having a no-match letter used against them follow the no-match rule's safe-harbor steps despite the court's holding action. By following the safe-harbor steps, even if the rule isn't in effect, he said, an employer should be able to establish that he acted in good faith to fix the problem.

"DHS says its rule is merely a clarification of the law and gives employers a way to have safe harbor if DHS were to discover that an employee identified in a no-match letter lacks work authorization," Borden said.

"So, no matter the rule's fate, the government and civil attorneys can argue you had constructive knowledge of an employee's lack of work authorization because you didn't try to resolve a discrepancy cited in a no-match letter, even one you received a long time ago about a current employee," Borden said. "That's an evidentiary issue that exists independently of the no-match rule. So, you still need to take some reasonable action to counter that charge."

Hallstrom said the no-match rule could buoy efforts to get Congress to act on AgJOBS, a bill that would reform the H-2A temporary foreign agricultural worker program and give alien farmworkers a way to earn legal status.

"AgJOBS for agriculture is still our primary objective. We must get this legislation for a temporary worker program through so that we have a long-term fix to the immigration and labor issues that agriculture faces," Hallstrom said. "If anything, I believe the no-match rule has probably fueled the effort even more because we realize that we absolutely have to get legislation passed."

(Christine Souza is a reporter for Ag Alert. She may be contacted at csouza@cfbf.com.)

Permission for use is granted, however, credit must be made to the California Farm Bureau Federation when reprinting this item.

http://www.cfbf.com/agalert/AgAlertStor ... 906726EBFE

this is the kind of BS that is killing our side, killing America.

Do you think Mexico would sit around pondering this crap? Do you think any other country in the world is dumb enough to sit around and ponder its own demise?

This goes against all sense of self-preservation as a nation....