On October 10, 2007, a federal district court blocked the Social Security Administration (SSA) from sending Employer Correction Requests, more commonly known as “no-match” letters, to 140,000 employers. AFL-CIO v. Chertoff, No. C 07-04472 CRB, 2007 U.S. Dist. LEXIS 75233 (N.D. Cal. Oct. 10, 2007). The letters would have affected approximately 8 million workers whose social security numbers, as reported by their employers, do not match the SSA’s records.
On August 15, 2007, the Department of Homeland Security (DHS) issued a final regulation outlining employers’ legal obligations when they receive a “no-match” letter from the SSA or a letter regarding employment verification forms from DHS. (For a full discussion on the final regulation, please see the August 2007 E-Lert published by Venable’s Labor and Employment Practice Group, which is entitled “DHS Publishes Final Regulation Outlining Procedures for Employers Who Receive SSA ‘No-Match’ Letters and DHS Notices”.) The final rule was slated to take effect September 14, 2007 and the SSA was to send “no-match” letters to 140,000 employers between September 4 and November 9. In late August 2007, however, a group of unions and business groups moved for a temporary restraining order and preliminary injunction, seeking to prevent DHS from taking any action to implement the regulation, and ultimately seeking to overturn what they consider to be an unlawful rule. The temporary restraining order was granted and, as reported above, the preliminary injunction was granted as well.
Implications for Employers
The decision to grant the preliminary junction is not a final adjudication on the merits of the claims in this action. While the decision gives workers and employers some breathing room in terms of reacting to “nomatch” letters, it does not overrule the final regulation issued by DHS. Further, the decision does not affect the dramatically increased enforcement of immigration laws and penalties against employers who employ illegal workers. In light of the Bush administration’s recent initiatives to strengthen immigration enforcement, employers are advised to review their employment eligibility verification (I-9) process and re-assess their existing I-9 forms to ensure compliance with immigration laws.