Jerry Maatman Quoted in Business Insurance
10/08/2007
The October 8 issue of Business Insurance reports on the social security no match rule. The article, "Employers fear fallout from ‘no-match’ rules : Illegal immigration crackdown may spark suits," notes "Employers fear that they will face greater employment discrimination risks if a federal judge this week upholds expanded employment authorization regulations that are part of the Bush administration's effort against illegal immigration. Employers, labor unions and civil liberties groups hope that U.S. District Judge Charles Breyer in San Francisco will render the issue moot later this week, when the judge is expected to decide whether the U.S. Department of Homeland Security can implement its new regulations, "Safe-Harbor Procedures for Employers Who Receive a No-Match Letter." . . . The labor and employer groups assert—among other things—that the regulations would impose unreasonable procedures and deadlines for reconciling discrepancies in employees' Social Security information to avoid facing possible government sanctions for employing unauthorized workers. Under the rules, employers would have to take prescribed steps after receiving so-called "no-match" letters from Social Security. The letters identify employees whose information on file with the agency does not match their information on their W-2 Forms. As in the past, a no-match letter does not authorize an employer to terminate those workers. But unlike before, employers and employees would have to reconcile the discrepancy within 93 days. Problems can be corrected within 90 days by employers or employees detailing how the no-match occurred, such as through a clerical error or because an employee changed names after marrying. If the no-match cannot be rectified within 90 days, employees would have three more days to verify that they are authorized to work. They would have to do that by completing the federal I-9 employment verification form and presenting documents—except those containing the questioned Social Security number and lacking a photo—that all prospective authorized workers are required to produce before an employer is permitted to hire them. . . . Given the number of Social Security errors and the limited time to resolve them, employer attorneys and officials for employer groups say some authorized workers of particular national origins likely will be terminated mistakenly. In its information insert, Immigration and Customs Enforcement assures employers that the U.S. government would not prosecute them for mistakenly terminating authorized employees if the new rules were followed and applied consistently in all cases. The problem with that assurance is that the U.S. Department of Justice and the U.S. Equal Employment Opportunity Commission have not publicly stated whether the government would honor it. . . Immigration and Customs Enforcement is not authorized to unilaterally issue that guarantee. Even if the government does not prosecute an employer, nothing in the new regulations would prevent mistakenly terminated workers from filing suit. Employer attorney Gerald L. Maatman, a partner at Seyfarth Shaw L.L.P., agrees. But while the Safe Harbor regulations create "many hoops to jump through," they also establish "a pretty darn good defense" for employers that comply with them, Mr. Maatman said."
