Editorial in Houton Chronicle

Aug. 10, 2007, 7:52PM
A 'no-match' policy will wreak destruction in Texas
If hundreds of thousands fired, who will replace them?

By BILL HAMMOND
Copyright 2007 Houston Chronicle
http://www.chron.com/disp/story.mpl/edi ... 45494.html

The suggestion that the Bush administration would throw our economy under the bus with a new "no-match" immigration policy that forces employers to choose between criminal penalties and illegal racial discrimination is troubling. It suggests that the administration hasn't given nearly enough thought to the severe damage this new policy will inflict on U.S. and Texas businesses.

No-match is the name given to a letter sent to millions of employers and employees each year informing them that there is a discrepancy between the records kept by the Social Security Administration (SSA) and the Social Security number submitted on an employee's Form W-2. Up to now, the no-match letter has been a request to correct the problem so that Social Security wages can be credited to the right employee.

The new Bush administration policy, which has been held in abeyance while the Senate tried and failed at comprehensive immigration reform, is expected to be made public in the coming days. It would provide Immigration and Customs Enforcement (ICE) — an agency of the U.S. Department of Homeland Security — with authority to pursue employers with criminal penalties for failure to act on no-match letters.

Employers who receive no-match letters are understandably confused. Discrepancies between workers' names and Social Security numbers often result from clerical errors or name changes due to marriage or divorce. Because these types of errors have nothing to do with immigration or work authorization, an employer cannot assume that receipt of a no-match letter implies anything about the employee's legal status. In fact, the letter itself stresses that it makes no statement about immigration status.

As if the impending confusion were not enough, ICE has stepped up its enforcement and is using no-match letters as a way to establish immigration violations. As reported by The Associated Press this week, ICE officials promised enforcement that "is going to be tough and aggressive," with "more worksite cases. And no more excuses."

The new regulation is expected to promise a "safe harbor" for employers if they follow certain procedures for dealing with no-match letters. ICE notes, however, that even if an employer follows the safe-harbor procedures, it would not preclude a finding that an employer had "actual" knowledge that an employee was legally unauthorized to work.

Beyond confusing, the implementation of the rule will be mysterious. Employers are not notified of every mismatched record. The SSA only notifies employers that have mismatched information on more than 10 W-2 forms, and only if the total number of mismatched forms is more than one-half percent of the total forms presented by the employer. Businesses could be liable for mismatches of which they have no knowledge.

The new rule presents employers with a dilemma of threatened prosecution by ICE versus potential violation of the 1964 Civil Rights Act, which protects all workers regardless of immigration status from discrimination in employment.

The Equal Employment Opportunity Commission, the federal agency responsible for enforcing federal equal employment opportunity laws, says the regulation "may create circumstances in which employers have incentives to take actions that violate" the Civil Rights Act by failing to protect workers from employment discrimination regardless of citizenship or work authorization status.

Some businesses will do all they can to avoid the draconian choice. Employers will seek protection from prosecution by terminating employment potentially upward to 750,000 jobs. Most employers will do all they can to replace the terminated workers, but the question is: Where will they find them? Texas unemployment is lower than it has been in more 30 years, and the Dallas Federal Reserve Bank says that employers are already holding back on expansion because of the lack of workers.

The unfilled jobs will have real consequences. American citizens can lose their jobs as well. Meals in restaurants will go uncooked and unserved. Beds in hotel rooms will go unmade. Farms and ranches will lose the hands that help feed our people. The engines of economic growth will cool. No-match workers and their families will fall brutally victim to the dysfunction of Congress and bureaucracy run amuck.

The no-match regulation will wreak destruction on employers' loyalty to their workers, encourage an illegal underground economy and do unspeakable harm to the American economy as businesses lose workers and can't find or won't risk hiring replacements.

Why? Because a polarized Congress is unable to compromise on the critical issue of fixing a failed immigration system. If Congress can't find the resolve to act on bipartisan immigration reform, the least they can do is clean up the mess their breakdown has left behind. Fixing the no-match mess should be the first place they start.

Hammond is president of the Texas Association of Business and a board member of Texas Employers for Immigration Reform.