Strength in Numbers to Stop a Wrongheaded Law

On Tuesday, the U.S. Chamber of Commerce and a bunch of other groups representing businesses and employers joined the AFL-CIO, ACLU and National Immigration Law Center lawsuit against the Department of Homeland Security (DHS) over its new policy that tries to do an end-run around Congress and turn the Social Security Administration (SSA) into an immigration law enforcement agency. And on Thursday, the court granted permission to four more groups, this time from the organized labor side of things - UNITE HERE and the United Food and Commercial Workers Union among them - to join the suit. That brings the total number of plaintiff organizations to a whopping 16. The sheer number of organizations representing the interests of both employees and employers now clamoring to stop this rule underscores the wrongheadedness of this new government policy.

For years, employers have submitted employee information to the SSA so workers receive credit for their social security contributions. If the submitted employee info doesn't match the info the SSA has in its databases, the SSA sends employers "no-match" letters informing them of the discrepancies. Employers never had any duty before to respond to these letters. But according to this new rule, if the employer doesn't take action to resolve the discrepancies, DHS says it can assume that the employer had knowledge that its workers aren't legally allowed to work in the U.S.

Now, everyone's heard the stories of government databases ensnaring innocent Americans, so it won't surprise anyone the SSA's databases contain a plethora of discrepancies - 17.8 million of them, according to the Office of the Inspector General (OIG). The OIG also reports that 12.7 million of those 17.8 million discrepancies in SSA's database belong to native-born U.S. citizens. That's more than 70 percent. (Think about that the next time you get a new job and HR is asking you to fill out your W-2.)

There's a ton of innocuous reasons a lawful worker's social security information might not match what the SSA has on file. These include typos or clerical errors, name changes from marriage or divorce, or improper hyphenation or transliteration of foreign names. Along with our new co-plaintiffs, we 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.

We also argue that the time provided in the new rule to resolve discrepancies with the SSA - roughly three months - is inadequate given the SSA bureaucracy and the time it takes to gather the documents necessary to resolve the problem. Lawfully authorized workers often need to take time off from work and make multiple visits to the SSA. It can take ages to obtain, certify, and in some cases translate the documents needed, and could involve going back and forth with foreign governments to get marriage certificates or birth certificates from far-flung places. Both workers and their employers suffer during this limbo period. And what's most worrisome is that employers are more likely to discriminate against immigrant workers or anyone with a foreign-sounding name just to avoid this potential hassle.

Happily, the court granted a temporary restraining order (TRO) against the new policy -just in time for Labor Day. The court will hold a hearing in San Francisco on October 1 to decide whether to extend the TRO into a preliminary injunction - which would hold up the rule until the court can make a final decision on the legal issues.

There's strength in numbers, and given the millions of Americans, both employers and employees, who could be affected by this misguided policy, we expect a lot of interest in the courtroom on October 1.