New No-Match Rule EnactedNovember 20, 2008
In August of 2007, U.S. Department of Homeland Security (DHS) published a Final Rule outlining employer procedures for processing no-match letters. The rule expanded the definition of "constructive knowledge" and placed new obligations on employers who received no-match letters. The rule was strongly criticized for using Social Security information for immigration enforcement as well as placing unrealistic time expectations on employers to resolve no-match issues. On October 10, 2007, the U.S. District Court for the Northern District of California issued a preliminary injunction in AFL-CIO, et al. v. Chertoff, et al. (N.D. Cal. Case No. 07-CV-4472 CRB). The preliminary injunction enjoins and restrains the DHS from implementing the final rule.
On October 23, 2008, the agency issued a Supplemental Final No Match Rule that is purportedly effective immediately upon publication in the Federal Register. However, the DHS has filed a motion to vacate the injunction, which suggests that the government will honor the injunction until it is lifted by the court. A status conference regarding the injunction is scheduled to take place on November 21, 2008. At that time the court will likely set a briefing schedule for the government's motion to vacate the injunction. The Social Security Administration (SSA) has indicated that it will not send any no-match letters until the current litigation is resolved.
Curiously, the new rule is virtually identical to the old rule. The most significant change is in the rule's preamble outlining the justification for the new rule. The time employers have to respond to no-match letters, one of the most criticized aspects of the original rule, is largely unchanged. Following are the time frames employers have to respond after receiving a no-match letter:
- Up to 30 Days from receipt of the no-match letter - To check its own records, make any necessary corrections of errors, and verify corrections with SSA or DHS.
- Up to 5 Days from the end of its own internal review - To notify an employee of receipt of the no-match letter and the discrepancy with the employee's Social Security number.
- Up to 90 Days from receipt of the no-match letter- For the employee to work to correct the no-match issue and report back to the employer.
- Up to 90 Days from receipt of the no-match letter - For the employer to correct its own records and verify correction with SSA or DHS if it receives new information from the employee.
- Up to 93 Days from receipt of the no-match letter - For the employer and employee to complete a new Form I-9 if the employer and employee can't clear up the discrepancy with the Social Security Administration.
If the employee can not complete a new Form I-9 successfully, then the employer must consider termination or risk a finding of actual or constructive knowledge of unauthorized employment. It is important to keep in mind that the new rule only applies in cases where the written notice is sent to the employer. Moving forward, employers should not overreact after receiving a no-match letter. Employees should be given time to resolve any conflicts and should remain employed during the investigative process. Improperly terminating an employee could result in the employer being charged with discrimination. However, an employer must not ignore the no-match letter and should follow the steps discussed above if the injunction is lifted and the rule goes into effect.
If you have questions or concerns about the Supplemental Final No Match Rule, please call Gene Schaeffer (608) 284-2655 or C. Wade Harrison (608) 284-2207.