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The Latest Victim of the War on "Terror" : Employers!

Columnist

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Brandon R. Blevans
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The busser at my favorite local eatery is not a terrorist. I’m sure of it. I’m also relatively1 certain that the migrant field workers in our local vineyards aren’t terrorists either. The migrant laborers I see on local construction projects seem safe, too. While I’m no expert on homeland security issues, no one appears to be carting plastic explosives in his or her work boots. The only thing that seems to set them apart from other workers is, well, their strong work ethic.

So why is it the Department of Homeland Security (DHS) has taken such an interest in these employees? The answer is “political impotence.” Our federal government can’t erect an immigration plan that takes into account our economy’s need for unskilled labor, a xenophobic administration and security issues. So, instead of our elected2 leaders doing their jobs, they have abdicated their roles to the largest bureaucracy known to mankind: the DHS (which employed more than 183,000 people as of 2004). The DHS in turn, without any accountability to the public, passed the onus of immigration enforcement on to employers in the form of a regulation regarding the employment of individuals who aren’t authorized to work in the United States.

The old regime
For years, employers have been obligated to “I-9” their new hires. Within the first three days of getting a new job, the employee needed to provide documentation that established both identity and authorization to work in the United States. For many, this meant a driver’s license and social security card. So long as those (or certain other) documents appeared facially valid, the employer’s obligation was satisfied. End of story. As an employer, you could only mess this process up if you accepted really bad fake documents, or if an employee told you he or she wasn’t “legal.” (Believe it or not, employers messed this up all the time!)

All this worked just fine until a few years ago, when the Social Security Administration (SSA) got involved. At that time, the SSA realized that a significant number of the names and social security numbers didn’t match what the reported on W-4s filled out by employees, did not match the records in its database. This should come as no surprise, since it was the government handling the data entry. Picture some poor sap stuck sitting behind an overpriced, underpowered computer,3 charged with the responsibility of entering in nine-digit social security numbers all day long.4 All the while probably making the federal minimum wage (which is quite a bit lower than California’s—check your workplace postings for more details). Combine that with the fact that the data entry is coming from handwritten tax forms provided by employees, and it’s amazing the error rate wasn’t in the neighborhood of 90 percent.

To fix the problem, the SSA began sending out “no-match” letters to employers. These letters informed employers that certain employees’ data did not match SSA data. It instructed employers to inform the employees of the problem. It also instructed employers that the no-match letter did not implicate the employees’ authorization to work. Indeed, it warned that terminating an employee as a result of the no-match letter alone could result in discrimination claims.

In the good old days, employers simply informed employees of the problem. A number of possible scenarios could then unfold: The employee could do nothing about it, and the employer would get a new letter the next year; the employee could contact SSA and get the problem resolved; the employee would quit, fearing termination because he or she wasn’t legally authorized to work; or the employee would come back to work with a new name or a new social security number (or both).5 All of this was just fine, letting employers and workers continue on their merry way of producing goods and services in support of our economy and lifestyle.

A new sheriff in town
Apparently, the feds do not enjoy prosperity. Enter the DHS and its immigration arm, the Bureau of Immigrations and Customs Enforcement (ICE).6 Through the regulatory process, it’s unilaterally revamped the playing field and ensured that a process for fixing the government’s own database errors is now a potential minefield of civil and criminal penalties for employers. All in the name of homeland security.

The new regulations would impose potential civil and criminal liability upon an employer for retaining an employee who’s listed in a no-match letter if the employee can’t correct the mismatch within 90 days. Employers that receive no-match letters must now take certain steps to ensure rectification or be deemed to have constructive knowledge that the employee isn’t authorized to work. Those steps, which the regulations call a “safe harbor” are as follows:

1. Within 30 days, check its records to determine whether a clerical error caused the discrepancy. If so, the employer must correct the error with SSA and verify that the data matches.
2. If the employer finds no error, it must promptly ask the employee to confirm the name and Social Security number. As with the first step, the employer must correct any error with the SSA and verify the new records match, again within 30 days.
3. If the employer’s records agree with the information provided by the employee, the employer must promptly ask the employee to resolve the discrepancy with SSA.
4. If the discrepancy cannot be resolved within 90 days of the employer’s receipt of the no-match letter, the employer must complete a new I-9 form for that employee. The new I-9 may not be completed with any document containing the same Social Security number that appeared in the no-match letter.
   The only thing these steps makes “safe” is the conclusion that none of the bureaucrats involved in formulating these regulations has ever been an employer. (Maybe we should add that to the list of constitutionally required criterion for holding a position in Congress.)

For many employers, the SSA’s error rate imposes a significant operational burden, requiring the employer to follow up with dozens, even hundreds, of employees. The administrative time that compliance will take for some employers will be staggering. The regulation also offers no protection against claims of discrimination based on national origin or under the Immigration Reform and Control Act. In other words, employers who terminate employees because they can’t satisfy step 4 could find themselves on the wrong end of a discrimination lawsuit.

Finally, from a practical perspective, nothing about the regulation stops an employee who’s the subject of a no-match letter from getting a job at a different employer.7 The term “migrant labor” might now refer to yearly migration across the street to another employer.

One thing’s for certain: Our government’s attempts at regulation can terrorize hard working employees and law abiding businesses, all at once.

1. I say “relatively” because I’m certain enough to declare it here, but wouldn’t vouch for them to the likes of Tony Soprano. Probably splitting hairs, but when it comes to the mob….
2. We can debate the use of this term some other time.
3. I’ll tackle government procurement processes in the future.
4. If that were my job, I’d enter them incorrectly just to cure the boredom.
5. With amazing speed, I might add. It appeared that migrant workers had an express line at the DMV and SSA for issuance of completely new identities and documents.
6. Do I go with Don Johnson and linen suits here, or Vanilla Ice? Decisions, decisions.
7. Watch out—the DHS might start proposing a tattoo program!