John Valdez’s Legal Blog

As I will explain, in light of a new court decision, employers should proceed cautiously before terminating employees who are the subject of a mismatch of information in certain records, such as the information found in “no match letters.”   

In an earlier article, I wrote about the Bush Administration’s attempt to implement regulations concering “no match” letters.   No match letters are letters sent by the Social Security Administration (”SSA”) notifying an employer of a mismatch of information in government databases concerning the employee’s name and social security number. The regulation calls on employers receiving no match letters to undergo rather complex and involved steps under a safe-harbor procedure to avoid liability in the event the government determines any of its employees are working without permission. 

One result of the regulation, if implemented, would be that if an employer did not follow the safe-harbor provisions after receipt of a no match letter, the government could determine that the employer had “constructive knowledge” of the worker’s lack of work authorization.  Such employers could be heavily fined and criminal penalties could, in some cases, be imposed.  A California District Court has preliminarily enjoined the government from enforcing the regulations.  See AFL v. Chertoff, No. 07-4472, __ F. Supp. 2d __, 2007 WL 2972952, at 15 (N.D. Cal. Oct. 10, 2007), and a final decision on the regulations could be issued in the near future.

In Aramark Facility Services v. Service Employees International Union, Local 1877, AFL CIO CLC (”Aramark”),  the United States Court of Appeals for the Ninth Circuit specifically found that a no match letter did not demonstrate that an employer had ”constructive knowledge” of unauthorized employment or any immigration violation.  The employer, Aramark Facility Services, received no match letters concerning 48 employees.  It instructed these employees to, within three days, obtain new Social Security cards or verification from the Social Security Administration that new cards were being processed.  Thirty-three of these employees failed to timely comply with the employer’s request and were terminated. 

The Court found that the employer had wrongfully terminated the thirty-three employees and ordered the employees reinstated with back pay.  The Court found that the no match letter did not, by itself, provide constructive knowledge of an immigration violation, because there are many possible explanations for the mismatch information, not involving a person’s status, such as typographical errors, name changes, compound last names prevalent in immigrant communities, and inaccurate or incomplete employer records. 

In addition, the Court rejected the employer’s argument that the workers’ failure to obtain the requested Social Security information placed it on notice that the workers were illegal, and that by continuing to employ these workers under the circumstances would cause it to violate the immigration laws.  The Court found that the employees’ lack of response to a three day notice for Social Security documentation did not indicate that they were unauthorized to work or illegally in the U.S. 

The lesson to be learned from the Court’s decision is that employers should carefully consider how to respond to information about an employee’s records.   I know of some employers who are terminating employees based on inconsistent information regarding work authorization.  Many may be taking a path leading to liability in a law suit.  Aramark is certainly paying a high price for the path it took.   

The Long Beach Attorneys at Smith & Garg are highly experienced in immigration and business issues.   We would be glad to help your company develop an effective strategy for dealing with immigration issues, including those concerning work eligibility.