Guest Blogger: "No-Match" Letters and Workers' Rights
by Ana Avendano, Associate General Counsel, Director Immigrant Worker Program, AFL-CIO
Last week, the Bush Administration announced that it was changing its approach to “No-Match” letters in an attempt to meet concerns raised by a federal judge.
“No-match” letters are notices that the Social Security Administration (SSA) sends annually to employers who report a certain number of discrepancies between their employment records and SSA’s database. According to the SSA's website, the purpose of a letter is “to obtain corrected information to help SSA identify the individual to whom the earnings belong so that the earnings can be posted to the individual's earnings record.” This makes sense, given that the SSA was created as a safety net for working people, and allows an individual to keep an accurate record of one’s earnings and taxes. According to government records, 70 percent of discrepancies belong to native-born U.S. citizens.
“No-match” letters have long been used by employers to defeat worker organizing. Time after time, employers have used the letters as a pretext to fire workers when they try to organize, file a wage claim or otherwise exercise their workers’ rights.
On December 5, Jobs with Justice, along with partnered organizations, held a National Workers’ Rights Board Hearing concerning the SSA “No-Match” letters.
The Bush Administration adopted a rule in September that would require the SSA include a notice from the Department of Homeland Security along with the “No-Match” letters, instructing employers on the steps they need to take in response to the letter, including firing workers.
The rule was one of several “immigration enforcement” initiatives announced by Department of Homeland Security (DHS) Secretary Michael Chertoff in August. DHS created the public perception that employers who receive letters and don’t follow the new rule will be targeted for raids, audits or other enforcement actions. That’s simply not accurate. SSA cannot share the names of employers who receive “No-Match” letters with DHS, and therefore DHS cannot target those employers based upon the list.
The AFL-CIO, together with the American Civil Liberties Union and the National Immigration Law Center,the American Civil Liberties Union, the National Immigration Law Center and the ACAmericaA sued the DHS and SSA to prevent the new rule from being implemented. The suit alleges that implementation of the DHS rule violates the Administrative Procedures Act, and will cause tens of thousands of authorized workers to suffer discrimination, including termination.
On August 29, Judge Maxine Chesney of the Northern District of California issued a temporary restraining order, and on October 10, Judge Charles Breyer issued a preliminary injunction against DHS and SSA, finding that the new rule “would result in irreparable harm to innocent workers and employers.” He noted that the letters would affect more than 8 million workers, and could “result in the termination of employment to lawfully employed workers.” He also recognized that SSA itself has conceded that it will not be able to correct all mismatches—even if the mismatch is the result of SSA error—within the period provided in the rule.
On November 23, the government asked the District Court to stay the proceedings while it modifies the rule to address Judge Breyer’s concerns, essentially admitting that the rule in its current form is unlawful. The preliminary injunction will stay in place during the stay.
The injunction does not prevent SSA from sending out the old version of the 'No-Match" letters, absent the DHS insert. However, even in that form, the "no-match" letters have caused thousands of workers to lose their jobs, and have been used to quash union organizing.
As a result of President Bush’s announcement that the administration will look to revise the rule, a number of organizations have coalesced around the issue, including the AFL-CIO, Change to Win, Jobs with Justice, Interfaith Worker Justice, National Day Labor Organizing Network (NDLON), National Council of La Raza, National Employment Law Project (NELP), and the National Immigration Law Center.
The groups have announced that in the wake of a hearing regarding the effects of the letters, they will publish a report on the effect of SSA no-match letters.