Thursday, October 11, 2007

SS Enforcement/I-9 Battle Win for Employers...as War Looms

A collective sigh of relief could be heard across the U.S. this morning as General Counsels, immigration attorneys, and labor organizations heard the good news:  the U.S. District Court for the Northern District of California granted a temporary injunction keeping the federal government from initiating its aggressive new enforcement of so-called “no match” Social Security letters.  Under long-existing regulations, the Social Security Administration issues notifications to employers when an employee’s SSN information does not match government record. 



The new policy, abruptly announced this summer and immediately stayed temporarily until this federal court could review it, manifested the administration’s jaw-dropping about-face in its approach to the problem of illegal workers: after the President’s plan to legalize the U.S.’ 12 million+ undocumented aliens collapsed, the White House immediately announced aggressive new enforcement rules aimed at prosecuting those very undocumented workers, while simultaneously threatening to cripple those industries which rely upon migrants to fill jobs American’s don’t want to fill.



What does this temporary injunction mean?  Well, for starters, it means you have a little longer to get your leaky roof fixed before Mr. Chertoff and crew shut down the roofing industry, where the overwhelming majority of workers are not lawful U.S. workers.  The parties were ordered  by the court to “meet and confer on the form of the injunction, and submit a proposed order by October 12, 2007.”



Here’s how the court summarized its decision:



On August 15, 2007, the Department of Homeland Security (DHS) promulgated a final rule entitled “Safe-Harbor Procedures for Employers Who Receive a No-Match Letter.” See 72 Fed. Reg. 45611 (Aug. 15, 2007). Plaintiffs, a consortium of unions and business groups, filed a motion for preliminary injunction, arguing that injunctive relief is appropriatebecause they have demonstrated a high probability of success on four theories: that the rule…



(1) contravenes the governing statute;



(2) is arbitrary and capricious under the AdministrativeProcedure Act;



(3) is an exercise of ultra vires authority by DHS and the Social Security
Administration (SSA); and



(4) was promulgated in violation of the Regulatory Flexibility Act.



The balance of hardships tips sharply in plaintiffs’ favor and plaintiffs have raised
serious questions going to the merits. Accordingly, the motion for a preliminary injunction is GRANTED.



Now, nice as that sounds, here’s the problem:  looking back at the last few years, it’s pretty clear that when courts have tried to limit the power of the executive branch, things haven’t always turned out the way the court intended them to turn out.  Consider Guantanamo.  Or maybe the whole wire/phone tapping stuff.  And then there was Valerie Plame incident.
It’s pretty clear that the relationship between this administration and the courts attempting to enforce our Constitution is not exactly cordial.  This most recent temporary victory – and I stress the former…temporary  -- does not mean employers are by ANY means out of the woods.  In fact, if history is to be considered, it is almost certain that the federal government will continue to pursue whatever enforcement is possible so long as it does not fall specifically with in the letter of the law, i.e., the ultimate language of the injunction.  If history is to be considered, forget about the “spirit of the law”…if the injunction doesn’t spell it out, it will be fair game for Mr. Chertoff.



Therein lies the bedeviling problem:  since the Homeland Security Adminstration was created in response to the horrible events of September 11th, the already convoluted and overlapping laws and regulations addressing illegal employment have become a kaleidoscope of bureaucratic chaos.  At the helm of all of this is an agency which, despite its noble purpose, is tasked with the enforcement of an encyclopedic collection of complex and contradictory statutes and policies which it fails to fully comprehend.  This is nothing new: the fact is that the Privacy Act clearly prohibits a number of requirements imposed in long-existing employer enforcement provisions, and the fact is that probably 100% of U.S. employers are in one or another form of non-compliance with one law or another.



Worst of all, beleaguered GC’s and Directors of HR have not been able to count on outside counsel for a solution.  Sure, there’s software to input I-9s, but who’s keeping a current, real-time audit of workers’ employment status?  And how many of those hiring managers, recruiters, and HR teams have been trained – as they are required by law – to properly collect, monitor, and archive I-9 information?



To hear more about our lean, mean, bullet-proof I-9 solution and the protection it offers against federal fines and share-busting headlines, email me at J.Latour@I9advantage.com .   When I explain what we can do to manage your company’s I-9 compliance, you’ll breathe your own sigh of relief.



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