New No Match Letters Can't Be Sent for the Time Being

The San Francisco Chronicle reported today that Judge Charles Breyer has issued a nationwide preliminary injunction barring enforcement of the new "no-match rules."   The injunction will remain in effect until the trial of the underlying case or if it is reversed on appeal.  Judge Breyer's opinion can be found on Pacer and the case is American Federal of Labor v. Michael Chertoff, N.D. Calif. Case No. 3:07-CV-04472-CRB.

If the no-match rule had been enforced, the Department of Homeland Security would have immediately issued no-match packets to 140,000 employers identifying no matches for 8 million employees.  The employers would have been required to comply with the rule (described in my earlier post on this issue) within 90 days.  The opinion describes the anticipated difficulties in complying with the rule within 90 days.

An important issue for employers to be concerned about is whether receipt of a no-match letter issued under the old rule still can be interpreted as constructive knowledge that the employer is employing an illegal worker.  Judge Breyer refused to hold that the receipt of a no-match letter could never constitute constructive knowledge of employing an illegal worker.

The court also held that the rule did not contravene the governing statute, but its adoption raised serious questions regarding whether the rule was arbitrary and capricious, an exercise of ultra vires authority, and promulgated in violation of the Regulatory Flexibility Act.





No Match Rules on Hold

The LA times has reported that  On October 1, 2007, a United States District Judge in Northern California extended for ten days a temporary restraining order prohibiting the enforcement of the "no match" rules.  The rules permit immigration authorities to use mismatched social security numbers to go after employers who may have hired undocumented workers.

The no match rule, which presently is found at 72 Fed. Reg. 45,611, is intended to reduce improper use of falsified social security numbers.   See 8 C.F.R. Part 274a.  The National Immigration Law Center provides an online toolkit on how to deal with the rule, including a link to the rule itself. 

Under the rule, if the social security number on an employee's W-2 form is inconsistent with the records at the Social Security Administration (SSA), the SSA will write a letter to the employer requiring it to fire the employee if the employee's status cannot be verified within 90 days of the notice.  If the employer fails to fire an unverified employee, the employer could be subject to a $10,000 fine, and criminal and civil sanctions. 

The rule includes a safe harbor for employers who make efforts to comply.  An employer may be charged with constructive knowledge that they have hired an illegal worker if they receive a no-match letter.


Disability Retirement Plan Age Limit to Be Reviewed by Supreme Court

On September 25, 2007, the United States Supreme Court granted certiorari to review E.E.O.C. v. Jefferson County Sheriff's Department, 467 F.3d 571 (6th Cir. 2006).   This case involved an age-discrimination lawsuit concerning a disability retirement plan.   The retirement plan disqualifies employees from receiving disability-retirement benefits if they are still working and have reached the normal retirement age at the time they become disabled.  The plan purportedly calculates disability retirement benefits so that older workers who are eligible to receive disability benefits receive lower monthly benefit payments than younger workers.  Specifically, if a person is not eligible for retirement, his benefits are enhanced by adding remaining years of service until retirement.  In contrast, the benefits of a person eligible for retirement are calculated based on actual years of service.  In some situations, this difference in treatment apparently results in higher benefits for the person who becomes disabled prior to his normal retirement date.

The Sixth Circuit held that the EEOC established a prima facie case of age discrimination because this difference in benefits is facially discriminatory against older workers.

The individual who filed the charge with the EEOC was denied disability retirement because he had reached the age of retirement at the time he was disabled, in his case 55-years of age because he was a sheriff, which the plan defined as a hazardous position.