The No-Match Showdown

• By Jerry Laws
• Feb 01, 2008

Today’s hottest workplace issue doesn’t involve OSHA or MSHA, but instead the Department of Homeland Security and the Social Security Administration. DHS wants to make U.S. employers liable if they continue to employ at least 8 million workers whose W-2 earnings statements don’t match SSA’s records, which are growing by 8 million to 11 million mismatched earnings records each year. By the time you read this column, DHS is likely to have issued a revised Safe Harbor rule for employers who receive an SSA nomatch letter; 140,000 employers would have received the new no-match packets from the two agencies had U.S. District Judge Charles R. Breyer of San Francisco not blocked the rule from taking effect last fall.

AFL-CIO, et al. v. Chertoff, et al., 07-4472- CRB, pits the AFL-CIO, two large unions, and the U.S. Chamber of Commerce against the two federal agencies. The plaintiffs argued U.S. citizens and legally authorized workers would lose their jobs simply because of errors in the Social Security database. Judge Breyer agreed the initial rule threatened employers with higher compliance costs and workers with a higher risk of termination.

The ACLU, which joined the AFL-CIO to fight the rule, posts legal documents from the case at www.aclu.org/nomatch. “There’s a ton of innocuous reasons a lawful worker’s Social Security information might not match what the SSA has on file,” ACLU staff attorney Jennifer Chang blogged. “These include typos or clerical errors, name changes from marriage or divorce, or improper hyphenation or transliteration of foreign names. . . . [W]e argue that in light of these many innocent reasons for a discrepancy, the receipt of a ‘no-match’ letter does not amount to knowledge of questionable work status.” She points out that employers have never had a legal duty to respond to no-match letters, but this rule imposes such a duty.

Homeland Security Secretary Michael Chertoff agrees there can be innocent explanations for the discrepancies but makes no apology for requiring employers to ensure their workers are legal. He said Nov. 6 that employers “should know the steps that they ought to take in order to make sure that they do not continue to hire or employ that illegal worker in their workforce.”

Some employers resist the rules because they fear the impact on their workforces, Chertoff added. “And I understand that enforcing the laws is now going to have an economic impact on some industries. We’re going to try to do the very best we can to improve the law in a way to make it easier to hire lawful workers. But at the end of the day, if people are hiring illegals, we’re going to do everything we can with the tools we have to make sure that we react strongly and aggressively and in a tough manner against that violation of the law.”

Many Americans believe illegal immigration is this country’s biggest problem. Millions of workers are about to find themselves at the heart of this debate.

This article originally appeared in the February 2008 issue of Occupational Health & Safety.