No-Match Letters Place Undue Burden on Employers

The so called safe harbor from prosecution/sanction for immigration law violations arising from an employer’s handling of No-Match letter places a heightened burden on employers and may only exacerbate an already growing worker shortage. It is a poor effort to solve the problems created by a lack of consensus on a national immigration policy. It has collateral effect of heightening employer’s liability for immigration-related discrimination and employee relations problems.

Many Commentators believe that No-Match letters are not an effective mechanism for ferreting out illegal immigration, so granting a safe harbor to employers for playing along is meaningless. Some of the facts that lead me to this observation are as follows:

• Estimated 12 million illegal workers.

• The Social Security Administration sent out 138,447 no match letters in 2006.

• The data underlying the no match system contains numerous errors leading to "false positives". There may also be privacy issues limiting the sharing of data.

• There is no reliable data base for employers to check/verify employment status and the existing data base is predicted to be "overwhelmed" when government contractors are forced to use it. There is no safe harbor for using the E-Verify System.

• The I-9 Form process is complicated with  a maze of documents that can be used to authenticate work eligibility and identity . Some are temporary and require re-certification when they expire.

• Employers are also responsible for assessing the genuineness of documents which may be easily forged, altered or fabricated..

• Employers  face liability for actual and constructive knowledge of employment of unauthorized workers. The actual knowledge standard can make HR managers avoid answering employee questions when it comes to immigration status. It can also make HR Managers rumormongers and workplace immigration police when they must reasonably investigate third party comments on immigration status. The constructive knowledge standard is addressed in the safe harbor.

• Placing onuses on employees to resolve no match discrepancies within 90 days is untenable. My limited experience with SSA and Immigration leads me to believe that almost nothing can happen in 90 days.

• Employers must re-examine verification and identity documents for those employees who have no match problems and fire those who cannot comply with the I-9 requirements. Employers cannot rely on mismatched documents for re-certification.

• Office of Special Counsel for Immigration-Related Unfair Employment Practices is  posed to protect employees from immigration-related discrimination.

• The predicted worker shortage will put pressure on employers to run their businesses.

• The economic impact of enforcement may be  concentrated on a few states that have Labor pools that rely on immigrant workforces like Texas, California, New York and Florida.

• Some perceive the No-match program as an employer motivated, government endorsed mechanism to fire immigrant workers.

• Unions and other interest groups will mobilized to protect workers and organize around immigration issues.

My conclusion is that employers will be whipsawed  by worker shortages, immigration sanctions for hiring illegal workers, discrimination claims by fired workers who lack documentation and employee relations issues including unionization. 

I received several questions about  my contrast of the No-Match safe harbor and  a perfect storm. I borrowed the “perfect storm” allusion from my friend Ira Wolfe who has written a book entitled The Perfect Labor Storm which highlights the impact of demographic trends on national employment.