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Greg Siskind on Immigration Law and Policy

9TH CIRCUIT HOLDS THAT NO MATCH LETTERS DON'T EQUATE TO CONSTRUCTIVE KNOWLEDGE

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The US Ninth Circuit Court of Appeals, one notch below the Supreme Court, has ruled that the mere receipt of a no match letter by an employer does not equate to the employer having constructive knowledge that a worker is unauthorized to work.



For those of you not familiar with no match letters, these are letters the SSA sends employers when they determine that a worker's social security number and their names don't match. Billions of dollars sit in an account at SSA for people whose names and numbers don't match. Some of those folks are very likely illegally in the US. And many of the estimated 17,000,000 people with data problems are probably US citizens.



This is a key decision because for several years employers have not had clear guidance on how to handle the letters. Some immigration lawyers have advised clients that receiving an SSA no match letter puts the employer on notice that a worker is probably illegally present in the country.



The case centers around Aramark, a massive company that runs concessions at arenas around the US. The case involved workers at the Staples Center in Los Angeles, home to the Lakers, Clippers and Kings. Aramark received no match letters and told 30+ employees that they had three days to prove they had new social security cards on order or they were fired. Most workers didn't respond and instead turned to Service Employees International Union which entered in to arbitration with Aramark over the issue.



The arbitrator found no evidence to prove the workers were illegal and ordered Aramark to pay back wages. The district court reversed the finding on public policy grounds. The 9th Circuit held that the arbitrator's fact finding must be honored and ruled against Aramark.

In addition to misuse by undocumented workers, SSN mismatches
could generate a no-match letter for many reasons,
including typographical errors, name changes, compound last
names prevalent in immigrant communities, and inaccurate or
incomplete employer records. By SSA's own estimates,
approximately 17.8 million of the 430 million entries in its
database (called "NUMIDENT") contain errors, including
about 3.3 million entries that mis-classify foreign-born U.S.
citizens as aliens. Congressional Response Report: Accuracy
of the Social Security Administration's NUMIDENT File
(Dec. 2006), available at http://www.socialsecurity.gov/oig/
ADOBEPDF/auditt xt/A-08-06-26100.htm (last visited June
9, 2008).




[5] As a result, an SSN discrepancy does not automatically
mean that an employee is undocumented or lacks proper work
authorization. In fact, the SSA tells employers that the information
it provides them "does not make any statement about
. . . immigration status" and "is not a basis, in and of itself,
to take any adverse action against the employee." Social
Security Number Verification Service Handbook, available at
http://www.ssa.gov/employer/ssnvs_handbk.htm (last visited
June 9, 2008).



*****



In sum, the letters Aramark received are not intended by
the SSA to contain "positive information" of immigration status,
and could be triggered by numerous reasons other than
fraudulent documents, including various errors in the SSA's
NUMIDENT database. Indeed, the letters do not indicate that
the government suspects the workers of using fraudulent documents.
Rather, they merely indicate that the worker's earnings
were not being properly credited, one explanation of
which is fraudulent SSNs.

*****

One final point. Aramark has introduced no evidence concerning
the fired employees' actual employment status other
than that they were named in the no-match letters and did not
quickly respond to the request for further verification of their
social security status. In addition to creating no "constructive
notice," this evidence simply does not demonstrate that any of
the workers actually were unauthorized to work, particularly
because a social security card is only one way to prove work
authorization.

Incidentally, the Court notes the no match rule from DHS that is being held up in the courts. The court would expand when employers are deemed to have constructive knowledge when they receive no match letters and also provides a "safe harbor" procedure for employers to terminate workers when they do get these letters.



Here's the text of the decision.



9th Circuit Aramark case - Get more Legal Forms

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Comments

  1. lacrossegc's Avatar

    Very very troubling story ...

    http://www.alternet.org/story/95351/at_jfk_airport,_denying_basic_rights_is_just_another_day_at_the_office/
  2. Legal and no longer waiting's Avatar
    Ha, reminded me of Harold and Kumar Escape from Guantanomo!
  3. Another voice's Avatar
    Greg,

    If a no match rule does not equate to constructive knowledge, does that mean that the rule has no teeth for employers but they still must enforce it? Employers seem to have a good legal defense against any action that arises from this rule don't they?
  4. Greg Siskind's Avatar
    Hi AV - The no match rule would provide a safe harbor from a finding of constructive knowledge. It doesn't change the standard for showing constructive knowledge which does require a consideration of the circumstances. This case will certainly make it harder to pin constructive knowledge on an employer based solely on receiving a no match letter.
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