Labor - December 2009

DHS Rescinds No-Match Rule —
Why Employers Should Not Start Celebrating
By Jacob M. Monty

On October 7, 2009, the Department of Homeland Security (DHS) finally put the brakes on its 2007 proposal to amend its regulations and penalties arising from an employer’s receipt of a “no-match” letter. The no-match letter informs employers that certain information submitted by the employee does not match Social Security Administration (“SSA”) or DHS records. In the proposed regulations, DHS defined certain procedures an employer needed to take within a specified time period to acquire a “safe-harbor” when receiving a no-match letter or risk a criminal charge for hiring an illegal worker. However, under the DHS’s new leadership, the government rescinded its proposal to amend its no-match letter regulations in favor of alternative compliance efforts to reduce the employment of illegal workers. Yet these alternative compliance efforts are sure to result in more monetary penalties on businesses and in some cases, loss of an employer’s workforce.

WHAT IS A NO-MATCH LETTER?

No-match letters are sent by either the SSA or DHS. The most common no-match letter is a letter sent by the SSA — informing the employer that the combination of an employee’s name (or other biographical information) and social security number failed to match SSA records. While a no-match letter can result from a clerical error or name change, oftentimes, the no-match letter is an indicator that the employer has workers who are not authorized to work in the United States.

Individuals illegally immigrating to the United States resort to purchasing social security cards,
identification cards, and permanent resident cards, to name a few. The worker then uses his newly purchased social security card to complete the I-9 form, which is used to verify an employee’s legal authorization to work in the United States, and the W-4 form, which is used to determine withholding allowances on an employee’s income. Unless the immigrant assumes the identity of an actual person who does have legal work authorization, the SSA will eventually issue a no-match letter to the employer stating that certain biographical information provided by the employee failed to match SSA records.

THE PROPOSED NO-MATCH REGULATIONS

DHS proposed the now-rescinded no-match rule to identify workers who are unauthorized to work in the United States through their use of a false social security number (SSN) or an SSN assigned to someone else. DHS took the position that receipt of a no-match letter was a warning to the employer that an employee may be an unauthorized alien and therefore ineligible to work for the employer. The no-match regulations would force the employer to investigate the reason for the no-match letter. Failure to follow these procedures would result in the presumption that the employer had “constructive knowledge” that certain employees were undocumented workers. Failure to follow the no-match letter regulations would provide DHS with the ability to prosecute those employers. Of course, diligent employers who followed the no-match procedures were afforded “safe-harbor” from prosecution for having hired undocumented individuals.

SHIFTING THE FOCUS

The Obama administration conducted a review of existing programs and regulations to determine areas of reform or improved efficiency. The current administration rescinded the proposed no-match rule, but such a rescission is no cause for celebration. In making its review, DHS determined that programs such as the electronic employment verification system (E-Verify) provide better tools for employers to reduce the employment of unauthorized individuals and to better detect the use of fraudulent document usage by employees.

Furthermore, in making its decision to rescind the no-match rule, DHS felt that it could use its improved worksite enforcement strategy to better combat against the hiring of ineligible individuals — i.e., scaring employers into compliance. On July 1, 2009, DHS, through Immigration and Customs Enforcement (ICE), launched a “bold new initiative” in its worksite enforcement program by issuing 652 Notices of Inspection (NOI) to companies across the United States in a single day. By comparison, for the entire 2008, ICE issued only 503 NOIs. More NOIs are expected by the end of 2009. An NOI is a document provided by the government to employers notifying them that they have been selected for inspections of their I-9s due to investigative work conducted by ICE. The notice signals to an employer that ICE has information leading it to believe that individuals without employment authorization have been hired by the company.

The NOI process begins by the employer providing ICE with the I-9s of its workforce, recent payroll records, and other information within a 72-hour timeframe. Once ICE obtains the I-9s, it reviews the I-9s to ensure the employer completed the I-9s in accordance with the law with deficiencies resulting in civil penalties. ICE also reviews the I-9s to determine whether an individual is illegally working for the employer, which can result in criminal action against the employer in addition to monetary fines.

One company is already feeling the effects of an I-9 investigation. The ICE investigation of American Apparel Inc.’s I-9s began in 2008, and in September 2009, the company announced plans to lay off as many as 1,600 workers who appeared to lack proper work authorization. American Apparel stands to lose up to one-third of its workforce, which could potentially have a material effect on the company’s production. While there is no word on whether ICE will fine American Apparel, in July 2009, ICE did fine Krispy Kreme $40,000 after completing its I-9 investigation.

GOOD NEWS?

Rescinding the no-match rule is good news, right? So why should employers not begin celebrating? While DHS rescinded the no-match rule, it does not mean that the federal government will not continue to send no-match letters. The rescission simply means that there is no established protocol employers are required to follow if they receive such a letter. The federal government will continue to use the receipt of a no-match letter by employers, and their actions after such receipt, in building a criminal case for knowingly hiring individuals who are not authorized to work. For example, in building its criminal case and ultimate conviction on August 8, 2009 against Shipley Donuts in Houston, the government not only analyzed the company’s I-9s, they also reviewed the no-match letters sent by the SSA to Shipley Donuts.

EMPLOYER-ESTABLISHED PROTOCOL

Employers should establish their own no-match-letter protocol. Should employers receive such a letter, they should take immediate action by looking at their records for any type of clerical error. If no clerical error was made, an employer should inform the employee, in writing, of the receipt of the no-match letter and ask the employee to go to the appropriate entity and resolve the issue. Employers should also take immediate action if the no-match letter states the SSN belongs to a deceased person or child. The government will continue to use the receipt of no-match letters and the subsequent inactivity of the company in building their criminal cases.

Furthermore, for inquiries by individuals who claim their identities were stolen by a worker, employers should request written documentation by the claimant and investigate the matter with the employee to determine if identity theft has occurred.

Employers should be forearmed and obtain a third-party I-9 audit of their current employees. Not only is an I-9 audit a Best Practice recommended by DHS, it will also allow employers to evaluate their liability should they be served with an NOI in the upcoming rounds of audits by DHS. Fines for simple technical paper violations on I-9s range from $300 to $1,200 per I-9. Therefore, prudent employers will have their I-9s audited by a third party in order to reduce such liability for their workforce.

UPDATE COMPANY POLICIES

Now is a good time for employers to refurbish some of their compliance policies. The best place to start looking for ideas is ICE’s own Best Hiring Practices. In summary, ICE recommends various tools employers can use to protect themselves from hiring undocumented individuals. These include enrolling in the E-Verify program, ensuring only individuals trained in the I-9 process complete the I-9, scheduling annual I-9 audits by outside auditing firms, and being proactive upon receipt of a no-match letter or notification of possible identity fraud. The worst thing an employer can do is do nothing at all.

Jacob M. Monty is managing partner of Houston, TX-based Monty Partners LLP (www.montypartners.com), a law firm that counsels on compliance with and implementation of federal immigration reform and control laws, including employment verification and I-9 form compliance, prohibited discrimination under immigration and nationality laws, and Department of Labor audits. Monty Partners LLP is an employment, labor, and immigration law firm with attorneys board certified in labor and employment law by the Texas Board of Legal Specialization.

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