11/ 30/ 2007
Court orders injunction against Homeland Security's no-match rules
A federal court issued a temporary injunction this fall against the Department of Homeland Security, forbidding the agency from enforcing the so-called no-match letter rules.
Employers receive a no-match letter from the Social Security Administration when an employee's name and Social Security number don't match what the SSA has on file. These new rules would require employers to resolve the discrepancy within 93 days. If the discrepancy isn't resolved in that time, employers would be forced to fire the employee, or risk severe civil or criminal penalties.
These rules put employers in a difficult position. An employer who fires an employee prematurely risks a discrimination lawsuit. However, an employer who refuses to fire an employee risks penalties.
The Department of Homeland Security finalized these rules without taking into account the economic costs they would impose on small businesses, as required by federal law. NFIB's Legal Foundation urged the court to force DHS to follow administrative procedures designed to protect small businesses from burdensome regulations.
The federal judge who issued the temporary injunction indicated that he was convinced that these rules, if enacted, would undoubtedly be burdensome to innocent employers and employees.
For now, the injunction prohibits DHS from enforcing the civil or criminal penalties on employers until the case against DHS goes to trial. However, DHS may appeal the injunction. The foundation will be paying close attention to this case and will keep members informed of any changes to the law.
In the coming months, if employers receive a no-match letter, they should work with their employee to resolve the discrepancy, but they don't need to be concerned about resolving it within the 93-day timeframe. Under the current law, there are no deadlines placed on employers for resolving a no-match discrepancy.
Legal Foundation Challenges Arizona Law Forcing Employers to Use E-Verify System
The NFIB Legal Foundation also is challenging a new immigration law in Arizona. The law, popularly known as the Fair and Legal Employment Act, requires all Arizona employers to verify new hires through the federal basic pilot program, now known as e-verify. If the court does not take action, the law will go into effect Jan. 1.
While well intended, this law is unfair to Arizona's businesses. States should not force businesses to comply with a voluntary federal program, especially when the program is in its pilot stage and has a high error rate.
