Unions and immigrants say a new enforcement tactic targets both.
Last week a lawsuit by the AFL-CIO, the American Civil Liberties Union, the National Immigration Law Center, and various union locals resulted in a temporary restraining order against a new Department of Homeland initiative aimed at undocumented immigrants. The order, issued by a federal judge in San Francisco, halted plans for insertion of a new Department of Homeland Security (DHS) warning in Social Security “no-match” letters. Over the course of this year the Social Security Administration (SSA) will send out roughly 140,000 “no-match” letters to employers informing them that specific workers are using social security numbers that don’t match with their names. The DHS warning would tell employers that they face penalties of up to six months of jail time and fines of $3,000 for each of their workers discovered to be employed under a false social security number. Workers’ rights groups, unions, and immigrant advocates across the country claim the DHS warnings will threaten the jobs of workers—both citizens and non-citizens—and throw the economy into chaos.
Javier Morrillo, president of SEIU Local 26 in Minneapolis, says the Homeland Security notices will only reward the worst employers because those that pay in cash, don’t report taxes to government, and exploit workers based on their lack of citizenship won’t be the ones receiving them in the mail.
“There are entire industries that depend on immigrant labor,” he says. “They know they can’t fire everybody, but now they can fire the ones they want.”
In the past, no-match letters told employers that the worker had 90 days to clear up any discrepancies with their social security number. The letter clearly directed employers not to fire or take adverse action against employees while the issue is being resolved. But the new DHS inserts will tell employers they have the option of firing employees if the dispute is not resolved within the time period.
Critics claim the only result of the proposal will be to instill fear in workers and employers without doing anything substantial to solve the nation’s immigration crisis. Morrillo says that Immigration and Customs Enforcement (ICE) lacks the resources to deport the millions of undocumented immigrants currently working in the country and is trying to create a climate in which they deport themselves.
Other union leaders add that threats of employer sanctions, while resulting in the firing of workers, will be largely unenforceable by the government. Under section 6013 of the IRS Code the SSA is forbidden from sharing tax information with any other government agency. Immigration agents seeking to bring charges against a business will have no way of knowing it received and ignored a no-match letter, other than stumbling across it in the course of a workplace raid or audit.
Ana Avendaño of the AFL-CIO says that unscrupulous employers have long used the no-match letter as a tool against immigrants seeking to organize, by holding onto the letters and only threatening employees with firing or deportation if they participate in a union drive. She feels the new threats from Homeland Security will further legitimize this process in the eyes of employers.
“There’s no guarantee employers don’t just fire everyone on the [no-match] list. That could happen for employers who don’t want to be accused of discrimination or bother to go through the hurdles of paperwork,” she says.
Employers will still be required to give workers time to resolve possible social security errors, but research has shown that this often doesn’t happen. A 2003 study by the Center for Urban Economic Development at the University of Illinois found that 34% of workers who had received no-match letters were fired without being given the legally mandated 90 days to fix the discrepancy. The study also revealed that 21% of workers felt they were sent the letter as a direct result of their union activity. Some of the fired workers in the survey reported being told by management that they could later re-apply for their former positions through a temp agency, but with half their previous salary and none of the benefits.
Even the judges who issued the restraining order ruling noted that the Social Security Administration’s massive database, which holds some 230 million earnings reports in an average year, is prone to errors. Carmen Morena of the SSA’s Chicago branch admits that, while 96% of employee wage reports are matched correctly with numbers in the social security database, the system isn’t fool-proof. Errors can result from a name change being incorrectly reported after a marriage or divorce or a simple misspelling. These errors are then carried over to E-Verify, the electronic database used by the federal government and some private employers to verify social security numbers. According to 2006 report by the Social Security Administration’s Office of the Inspector General more than 70% of the 17.8 million errors in the database involved native-born U.S. citizens.
Given the government’s margin of error and often slow response time, some question whether workers’ jobs should be put at risk while they shoulder the burden of clearing up discrepancies in the Social Security database. Susana De León, a Minneapolis immigration lawyer, has known citizens with valid Social Security numbers that have been incorrectly identified by no-match letters and has personally experienced SSA bureaucracy.
“In college,” says De León, “I got letters from my financial aid, saying I wasn’t a citizen, until I realized that Social Security hadn’t updated my records. It took a long time to tell them, and I was lucky because I knew how to deal with it. But if you have only a certain time to take off work, you can go sit at the Social Security Office for an hour or two and maybe they’ll get it taken care of and maybe not. “
SEIU Local 26 has been holding weekly protests in front of the Social Security Administration’s Twin Cities offices, and members are working to educate workers about the possible effects of the new policy. On October 1, the Department of Homeland Security is expected to contest the restraining order in a San Francisco court.
“We feel it’s disappointing that the judges feel it fair to delay the Social Security Administration’s sending out of the letter,” says DHS Public Affairs officer Pat O’Reilly. “But we expect that when the judges have the full benefits of hearing the briefings and the arguments they will understand what this purpose of this is and that it’s for the greater benefit of the United States.”