Nov. 8, 2006 – Thick in the middle of a national debate over immigration, the Department of Homeland Security proposed in June that employers re-check the documents of millions of workers with mismatched Social Security numbers â€“ and fire those who cannot resolve the discrepancy in 60 days.
Now, immigrant workers are feeling the proposalâ€™s effect, and are facing mass layoffs even before the regulation is finalized. Mismatches can be caused by common data-entry mistakes, but worker advocates say managers are using the proposal to oust employees involved in union organizing.
The proposed regulation relies on so-called "no-match letters" from the Social Security Administration (SSA), which signal an inconsistency between tax records and what the employer has on file.
Campaigners for immigrants say the timing of the rule, proposed while Congress fought over wider-reaching immigration bills, was designed to project a tough stance on immigration ahead of the mid-term election. That political salve, said Ana AvendaÃ±o, director of the AFL-CIO's Immigrant Worker Program, comes at a heavy price for undocumented workers.
"Theyâ€™re [signaling to] employers [that] you can implement the new regulation if you want, but you donâ€™t have to," she said. "But at the same time, it creates upheaval in the workplace, and itâ€™s chilling workersâ€™ ability to act collectively."
Firings at a Tipping Point
â€œIt creates upheaval in the workplace, and itâ€™s chilling workersâ€™ ability to act collectively.â€
Jorge Lopez says he was fired from his position as a kitchen manager at a suburban Chicago Applebeeâ€™s restaurant two days after his employer told him his Social Security number was a "problem."
"Itâ€™s imperative I work," he said, wondering aloud how he will make the $500 a month he sends to his mother in Mexico for her diabetes treatment. "They take advantage of us."
Lopezâ€™s situation is quietly spreading to untold thousands of other workers. Over the last month, the laundry company Cintas issued letters to employees telling them they will be indefinitely suspended if they cannot resolve their mismatched Social Security number within 60 days. Immigration and union groups have estimated the letters were sent to at least 400 employees at eleven facilities in five states.
Pam Lowe, Cintas vice president for corporate communications, would not say how many workers were involved. But she did tell The NewStandard all employees identified with mismatches were notified, and that the company has "a legal obligation to make sure all employees are legally authorized to work in the US."
Unions suspect the company is using the proposed regulation as an excuse to fire workers involved in organizing campaigns. Half of the facilities where workers received letters have active union drives, according to Ramiro Hernandez, a Unite Here organizing director. But many other Cintas shops did not receive letters, he said, despite a consistently immigrant workforce across the nation. Lowe did not respond to labor activistsâ€™ charges of union-busting.
Unions suspect the company is using the proposed regulation as an excuse to fire workers involved in organizing campaigns.
No-match letters are no simple indication of legal status. They can be triggered by name changes and typos, dragging even citizens into peril when employers treat the letters as definitive statements. SSA already sends letters to about 8 million workers a year, intended not as signals of immigration status but to inform them the government cannot properly record their Social Security payments.
Nevertheless, under the proposed regulation, Homeland Security could use failure to act on no-match letters as evidence that a company knowingly employed unauthorized workers.
But the resources employers have to check workersâ€™ documents are unreliable. Four years ago, Temple University researchers studied a pilot project that lets companies use databases from Homeland Security and the SSA to verify employment status. Those databases were found to reject one of every five properly documented applicants.
Some legal experts say firing workers based on no-match letters runs afoul of current law. Marielena HincapiÃ©, program director at the National Immigration Law Center, said that because the final regulation has not been issued, employers who follow it could be sued for discrimination and unfair labor practices.
Indeed, Lopez and another Chicago-area Applebeeâ€™s kitchen manager have filed complaints with the Equal Employment Opportunity Commission, the federal agency charged with rooting out workplace discrimination. The two say they were fired on the basis of national origin.
Tim Bell, executive director of the Chicago Workers Collaborative, said six other Applebeeâ€™s kitchen managers fired for mismatches were rehired after the charges and other pressure on the company.
"If you fire people for no-match," Bell told TNS, "weâ€™re going to put your company under the microscope."
But attorney Cynthia Lange says the law cuts the other way. Lange, a partner at the Fragomen law firm, which represents corporations in immigration cases, said businesses that do not respond to no-match letters could be targeted by the Department of Homeland Security. She argued the agency could already use the letters as evidence that a company was not complying with immigration law, even if the proposed regulation doesnâ€™t go into effect. That exposure alone could be sufficient for some employers to fire undocumented workers en masse.
Such large-scale preemptive action has precedent. Four years ago, the SSA stepped up its notification of mismatches to employers, sending nearly one million letters to employers, up from fewer than 110,000 sent in previous years.
Employers responded quickly. A 2003 University of Illinoisâ€“Chicago survey of workers affected by no-match letters found that more than half their employers fired workers listed on the letters. Many employers acted without giving workers time to defend themselves and resolve errors, despite explicit warnings from the SSA not to fire employees based solely on the letters.
In all, the National Immigration Law Center estimated 100,000 workers lost their jobs as a result of the increased mailings.
The researchers also found that almost half of those fired had been involved in labor organizing or had complained about poor working conditions.
Pushed to the Margins
Seeking to avoid another cycle of mass layoffs, dozens of trade associations, labor unions and immigrant-rights advocates registered comments opposing Homeland Securityâ€™s plan.
"The administration wants to take steps to show that they are enforcing the law," said John Gay, chief lobbyist and senior vice president of government affairs and public policy for the National Restaurant Association. "We say enforcement alone wonâ€™t do it if you have a broken [immigration] system in the first place."
The federal bureaucracy itself is divided on the proposed rule. The Equal Employment Opportunity Commission filed a comment warning the regulation could violate provisions against national-origin discrimination.
The agency has reason to fear this effect. A Government Accountability Office report in 1990 found that an estimated 461,000 employers began discriminating on the basis of national origin after the 1986 immigration bill, which created the first employer sanctions for hiring undocumented workers.
Stewart Baker, Homeland Securityâ€™s assistant secretary for policy, told a Senate hearing on immigration in June that the purpose of the regulation is to discourage the use of false Social Security numbers and partner with employers to deny work to unauthorized immigrants.
Meanwhile, advocates for fired workers say those hit by the program will stay in the country but shift to more marginal jobs.
The University of Illinoisâ€“Chicago study on no-match letters found that "displaced workers can be re-employed quickly, particularly if they are willing to tolerate low pay and inferior working conditions."
This was the case for Lopez. After Applebeeâ€™s fired him, he took work at another suburban Chicago restaurant, but is bringing home less money than before. Lopez is also considering delivering newspapers to bring his salary back to the $12.50 an hour he made previously.
"Now I will have to work sixteen, seventeen hours a day," he said.