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Employers using Social Security data to target and dismiss immigrant workers in view of proposed changes to government regulations–and if the rules formally take effect, millions of workers’ jobs could be at risk.
The regulations would give the Department of Homeland Security (DHS) oversight of Social Security Administration (SSA) “no match” letters–notifications sent to employers pointing out discrepancies between the Social Security numbers used by workers and those on file with the SSA. If workers’ Social Security numbers don’t match SSA files, and the workers can’t file the required documents in time, employers would be compelled to terminate them.
“The SSA no-match issue is yet another consequence of the framing of the legislative debate around a ‘broken immigration system,’ that needs a ‘national security’ fix and a corporate fix,” observed Ana Avendaño, who heads immigration policy at the AFL-CIO. “That has inspired DHS to offer quick fixes both to save face and to give the Administration an easy victory.”
What’s more, she said, “the proposed no-match rules just give employers an even more powerful weapon to use against workers. With the new rule in hand, during organizing campaigns, for example, employers will no doubt argue that it was the SSA rule that caused them to question workers’ immigration status, not the fact that workers were organizing.”
In the past, employers were explicitly prohibited from using Social Security no-match letters as an indication of workers’ immigration status. Labor lawyers and immigrant rights activists often succeeded in forcing employers to back down when they fired workers in relation to no-match letters.
But under rules proposed by the DHS in June, employers would be forced to do the opposite–proceed on the assumption that a no-match letter is evidence that an employee is unauthorized to work, unless and until proven otherwise.
Moreover, Immigration and Customs Enforcement (ICE) authorities would consider a no-match letter to be an indication employers had “constructive knowledge” that “unauthorized” employees were on the job–in other words, that management knowingly hired undocumented workers, which would result in fines and other penalties.
“Employers are potentially going to be liable for violating immigration law,” Tyler Moran of the National Immigration Law Center, said of the proposed rule change. “They are going to be overcautious and likely discriminate against those who look or sound foreign.”
Although it isn’t clear when or even if the proposed rule change will go into effect, some employers are acting as if the rule is already in place.
One is Apple Illinois LLC, the operator of 35 Illinois franchises of the Applebee’s restaurant chain. After receiving SSA no-match letters regarding two employees at different restaurants in the Chicago suburbs, the company dismissed the two men.
The employees, Juan Oropez and Jorge López, worked with the Chicago Workers Collaborative to file a complaint with the Equal Employment Opportunity Commission, accusing the company of discrimination.
According to attorney Chris Williams, who volunteers with the Chicago Workers Collaborative, Apple Illinois LLC routinely restricts Latinos to kitchen jobs–and in the case of Oropez and López, paid them by the hour when, as managers, they should have been paid at a higher salary.
Now comes the use of Social Security no-match letters as justification for terminating the two men–a foretaste, Williams said, of what will take place everywhere should the proposed DHS rules take effect. “What this proposes to do is make employers immigration [agents], plain and simple,” Williams said.
The process has already begun, with top corporate employment firms already advising their clients that they can–and should–regard no-match letters as an indication that an employee is unauthorized to work.
Whether or not the regulation is ever implemented, “it appears to us that ICE will expect that employers take immediate steps to address these mismatch letters,” the Milwaukee law firm Michael Best & Friedrich noted in a newsletter. “Employers should revisit how they are addressing mismatch letters in order to ensure that they limit the possibility of liability for knowingly hiring or retaining employees that are referenced in mismatch letters.”
According to Williams, this policy has been given the green light by DHS officials even without the formal implementation of the rule. “DHS is operating outside the law,” he said.
This murky situation–a kind of voluntary corporate compliance with a rule that doesn’t yet formally exist–reflects the contradictions of immigrant labor in the U.S. It’s one thing for an Applebee’s franchise to fire a small number of workers; it’s quite another for a major employer of immigrant labor like Tyson Foods to dismiss workers in connection with Social Security no-match letters.
“That’s why [companies that employ immigrant workers] are pushing so hard for a guest-worker program,” said Christopher Punongbayan, advocacy director of Filipinos for Affirmative Action, which is among the many immigrant rights groups organizing against the new rule on no-match letters. “If it were suddenly enforced on them that they can’t employ undocumented workers, then all their operations would grind to a halt. So they want to ensure that their current workers who are out of status can stay employed there.”
Labor and immigrant rights groups are stepping up their campaign against the proposed no-match rule and plan to pressure employers who use the letter to fire workers.
“We are not convinced that DHS has the legal authority to issue such a regulation and are exploring various avenues, including a possible legal challenge,” said Avendaño of the AFL-CIO. “We are working with local immigrant rights groups and worker centers to identify employers who misuse the [no-match] letter and will launch campaigns to hold those employers accountable.”