SHRM Seeks More Time, Protection in 'No-Match' Rule

By Beth Mirza May 2, 2008
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The Society for Human Resource Management (SHRM) has submitted comments on the Department of Homeland Security's Supplemental Proposed Rule clarifying a rule it finalized in 2007 on employer guidance in handling Social Security "no-match" letters regarding work eligibility.

The Department of Homeland Security (DHS) resubmitted the rule on March 21, 2008, to address points of concern raised by the U.S. District Court for the Northern District of California, which preliminarily enjoined the no-match rule's implementation on Oct. 10, 2007. The court said that many citizens and lawful immigrant workers could be affected by the rule and that DHS might have violated federal law by not closely examining the rule's potential impact on the workforce.

Though DHS is appealing the injunction, it has re-released the rule with further explanation of its proposed changes and is "pursuing these two paths simultaneously to get a resolution as quickly as possible," said DHS Secretary Michael Chertoff.

The rule stipulates what employers should do if they receive a "no-match" letter from the Social Security Administration, notifying them that an employee's name and Social Security number do not match agency records, or if they receive a notice from DHS that an immigration document or work authorization document submitted by an employee during the Form I-9 employment eligibility verification process was not assigned to that employee.

Under the rule, the employer has 90 days to resolve any discrepancies. If the employer can't resolve the issue, then it must terminate the employment of the affected worker or risk liability under Section 274B of the Immigration and Nationality Act for knowingly hiring or continuing to employ an individual who is unauthorized to work in the United States.

In comments on the rule, SHRM noted that the new rule no longer provides a "safe harbor" to protect employers against discrimination findings as long as they complied consistently and fairly with the terms of the regulations. Instead, the DHS refers employers to a guidance memorandum from the Department of Justice, which says employers that follow the guidelines will be protected from liability in an enforcement action.

"Though SHRM appreciates the " memorandum, these guidelines are not a substitute for an enforceable regulation," wrote SHRM Government Affairs Director Michael Aitken.

"SHRM is concerned that the high rate of database errors and the inflexibility of the procedures and timeframes prescribed by the rule could result in employers' exposure to increased liability for workers' employment discrimination and wrongful termination claims," Aitken wrote.

SHRM has asked the DHS Bureau of Immigration and Customs Enforcement, which issued the proposed rule, to provide clear language protecting employers that followed the rule from being held liable for external factors outside the employer's control. SHRM also asked DHS to work with the Department of Justice to create a clear safe harbor for compliant employers.

Citing unreliable government databases that could generate faulty no-match letters and the probability that no-match letters could take weeks to land in the in-box of the correct HR person, as well as the likelihood that the employee will have to be involved in sorting out the discrepancies, SHRM recommended a longer time period—120 days—for employers to respond to no-match letters.

"If the worker is unable to resolve the database discrepancy within the timeframe imposed by the rule, the employer would be in the difficult position of having to terminate employment or risk possible liability for knowingly hiring or continuing to employ an unauthorized worker," Aitken wrote.

Beth Mirza is senior editor for HR News . She can be reached at bmirza@shrm.org.

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