DHS No-Match Rules and Safe Harbor Provisions for Employers - Coursework Example

DHS “No-Match" Rules and Safe Harbor Provisions for Employers Total Number of Words 799 Introduction Over the years, the employment law in the United States has undergone a series of significant changes in order to protect the welfare of the employees from abusive and inconsiderate employers and/or those individuals who either purposely or unintentionally not comply with the current employment law (Blanpain et al., 2007). Regardless of the gender, race, and ethnicity, employees who can provide physical evidences that a company or business employer had violated the health and safety standards as set by the Occupational Safety and Health Administration (OSHA) will have the right to file complain to OSHA free of any legal charges as OSHA protects the employers by investigating on the legal complains that has been filed by the employees (U.S. Department of Labor, 2007). Aside from the complying with the OSHA guidelines, employers are also required to follow the rules as set by the Social Security Administration (SSA) (Lian, 2007). Employment law is not limited to issues related to employment discrimination related to race, age, and gender or the minimum wage and work benefits that each employee is entitled to; the law also protects the welfare of the local employees from any forms of accident that occurs within the workplace due to employers’ negligence to provide a safe working environment for employees or in any forms of threat which prohibits the local citizens from being able to have an opportunity for employment. Over the years, the increasing number of immigrant workers is said to be threatening the employment opportunity of the local residents. Since thousands of employers submit a ‘no-match’ employees’ name and the corresponding Social Security numbers as provided on Forms W-2 do not match the records of SSA each year (U.S. Immigration and Customs Enforcement, 2009), the District Court Judge Charles R. Greyer legally allowed the Department of Homeland Security (DHS) to develop a new harbor safety rules that will address the court’s concern regarding the case of AFL-CIO v. Chertoff, Case No. 07-CV-4472 CRB (N.D. Cal.) back on December 2007 (Akin Gump Strauss Hauer & Feld LLP, 2007). As part of informing the general public regarding the new harbor safety rules, the DHS and SSA spread ‘a No-Match’ letter to those who are directly concerned with the issue (NAFSA, 2009). Aside from providing a brief summary regarding the AFL-CIO v. Chertoff case, the significance of spreading the “No-Match" rules and safe harbor provisions for employers will be thoroughly tackled in details. This paper aims to address the unique legal issues on employment, labor or occupational safety and health law pertaining to the practice of human relations management. In the process of going through the main discussion, several ‘no-match’ related cases will be provided to provide the readers with a better understanding about the subject matter. AFL-CIO v. Chertoff Case Defendant Michael Chertoff – the Secretary of the Department of Homeland Security who is responsible for all the functions of DHS was legally sued for inter alia – his administration and enforcement of the Federal immigration laws. Basically the U.S. Immigration and Customs Enforcement (ICE) is a federal agency within the DHS who is in-charge for investigating the enforcing the immigration laws which include the 8 U.S.C.§1324a of the Immigration Reform and Control Act (IRCA) of 1986 which stated the unlawful employment of aliens (American Federation of Labor and Congress of Industrial Organizations v. Michael Chertoff, 2007). Under paragraph (1)(A) of U.S.C.§1324a, it is clear that the immigration law prohibits the employment of aliens: “to hire, or to recruit or refer for a fee, for employment in the United States an alien knowing the alien is an unauthorized alien (as defined in subsection (h)(3) of this section) with respect to such employment” (U.S. Code Online, 2001). Under (h)(3), the immigration law defined an “unauthorized alien” as someone who is not either (a) an alien lawfully admitted for permanent residents, or (b) authorized to be so employed by this chapter or by the Attorney General (U.S. Code Online, 2001). Likewise, the IRCA also stated that it is unlawful for any employer to: “Continue to employ an alien… Knowing the alien is (or has become) an unauthorized alien with respect to such employment” – Under paragraph (a)(2) of U.S.C.§1324a (U.S. Code Online, 2001). The only group of employees that are made exempted from the IRCA are those foreign individuals who were hired before the IRCA was implemented back on November 6, 1986 based on the hiring prohibition and verification process as stated under the Pub. L. No. 99-603 § 101(a)(3), 100 Stat. 3359 (1986). (American Federation of Labor and Congress of Industrial Organizations v. Michael Chertoff, 2007) In response to the huge discrepancy in tax collection, Julie Myers – the Assistant Secretary of Homeland Security for ICE was legally sued for not being able to perform her duties and responsibilities whereas Michael Astrue – the Commissioner of Social Security who is responsible for the implementation of programs administered by the SSA was also sued for his incompetence (ibid). DHS “No-Match" Rules and Safe Harbor Provisions for Employers Under the ‘no-match’ rules and safe harbor provisions for employees, employers were requested to report their employees’ name and Social Security Number (SSN) to the SSA. In case the employees’ SSA or DHS record did not match, the U.S. Immigration and Customs Enforcement (ICE) will send a “Notice of Suspect Documents” to the employer during the I-9 form audit (NAFSA, 2009). Although SSN no-matches can be a good indicator of potential illegal work by using unauthorized aliens (73 FR at 63847), typographical errors made on the employees’ personal information can be caused by clerical errors, the reissuance of SSNs of deceased person, employee name changes after being married or divorced, or even the use of multiple surnames (Archuleta, Omens, & Preciado, 2008; American Federation of Labor and Congress of Industrial Organizations v. Michael Chertoff, 2007) To enable the employers to comply with DHS’s ‘No-Match’ rules and safe harbor provisions, employees who were given the notice were allowed to make any significant changes over the SSA’s and DHS’s discrepancy within the next 30 to 90 days after receiving the ‘No-Match’ letter (NAFSA, 2008; American Federation of Labor and Congress of Industrial Organizations v. Michael Chertoff, 2007). Otherwise, the employer must either: (1) terminate the employee; or (2) face the risk of facing penalty as stated in 8 C.F.R. 274a.10 as a consequence of hiring an unauthorized alien (NAFSA, 2009). It will be the Office of Special Counsel for Unfair Immigration-Related Employment Practices (OSC) which is a government agency under the U.S. Department of Justice will be authorized to enforce the Immigration and Nationality Act’s (INA) anti-discrimination provisions. (National Immigration Law Center, 2008) With regards to employers who obliged with the INA’s antidiscrimination provision upon receiving the ‘no-match’ letter from either the SSA or DHS, employers will not be sued under the INA’s anti-discriminatory provisions provided that the employer has complied with the safe-harbor procedures as stated in the ‘no-match’ letter. For instance: It is unlawful discrimination to terminate employees listed in the ‘no-match’ letter without the employer attempting to make necessary arrangement with the employee to resolve the mismatch or treating employees differently because of the fact that the name of certain employees were included in the ‘no-match’ letter (ibid). Discussion Under DHS’ ‘No-Match’ rules and safe harbor provisions for employers, it was clearly stated under that employees who are foreigners hired before the IRCA was implemented back on November 6, 1986 would be exempted from the ‘no-match’ listing (American Federation of Labor and Congress of Industrial Organizations v. Michael Chertoff, 2007). On the 9th of November 2004, Salisbury Hotel v. Jaime Castro – a houseman at Salisbury Hotel was unjustly discharge by the hotel management for receiving a ‘no-match’ letter from the SSA (Shriftman, 2004). The main purpose of implementing the ‘no-match’ rule and safe harbor is to limit and prevent those aliens from working in the United States without filing legal documents with the immigration office. Considering the fact that the hotel management cannot prove that Castro was an illegal alien, the court dismissed the case due to the fact that the employee was a pre-1987 employee which made him exempted from completing the Form I-9. On the part of Salisbury Hotel, the fact that the court was only concern of the fines or penalties that will be imposed on the hotel for hiring illegal status made the court decide that the hotel management’s decision to discharge Castro was not malicious but due to lack of awareness or clarity of the law (Shriftman, 2004). Thus, the court simply dismissed the case after ensuring the Castro will receive a full back pay and benefits to compensate for the lost of possible income. In the case of Gila’s Jewel, Inc. v. Hotel employees and restaurant employees union regarding the discharge of Fernando Vasquez (Case No. 13-300-02261-01) for having his social security number (SSNs) on the wage and tax statement (Forms W-2) not matching the one record of the SSA. (American Arbitration Association, 2001) It was proper for Gila Baruch to take the responsibility of informing the eight (8) employees about receiving the ‘no-match’ letter from the SSA and instructing them to secure or obtain new social security numbers. However, Vasquez failed to do necessary action to make necessary changes with the SSA. Since the employee union helped Vasquez gather all the necessary documentation indicating that he has the legal right to work in the United States, the court found Baruch guilty of discharging Vasquez of terminating the employee without exerting extra effort to determine whether or not Vasquez has the legal right to work in the United States even though Vasquez failed to show any effort to correct the discrepancy in his SSN. Baruch claimed that her decision to dismiss Vasquez was because of the potential fine of employing illegal aliens. Since the court found that Baruch’s decision to dismiss Vasquez was pure speculation, Vasquez was granted to reinstate his position in the company and was awarded to receive whole monetary compensation for the lost wages and benefits (American Arbitration Association, 2001). Conclusion Even though the ‘no-match’ rules and safe harbor provisions for employees has been implemented, human resource managers should still consider the provisions as stated under the existing employment laws especially those that concerns the employees’ right on benefit plans, Service Contract Act, employment discrimination and equal opportunity in supply and service contracts (Executive Order 11246), Occupational Safety and Health Act (OSH Act), and the Fair Labor Standards Act (FLSA) among others (U.S. Department of Labor, 2008; Johnson, 2001). Therefore, employers do not have the right to simply decide on firing employees who are included in the list of ‘no-match’ letter. Basically, the introduction of the ‘no-match’ rules and safe harbor provisions for employees does not replace any of the existing employment laws. As a way of increasing the job opportunity for the local residence, the only purpose of implementing the new rule is to eliminate and prevent the aliens from illegally working within the United States. References: 73 FR at 63847. (n.d.). Retrieved from (“The final rule does not make any substantive changes from the August 2007 Final Rule). Akin Gump Strauss Hauer & Feld LLP. (2007, December). Retrieved April 23, 2009, from AGENCY ACTIVITY ALERT - DEPARTMENT OF HOMELAND SECURITY, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT AND U.S. CITIZENSHIP AND IMMIGRATION SERVICES: http://akingumpinfo.com/ve/ZZd907781WWHW90n59q3/VT=0/page=2 American Arbitration Association. (2001, December 27). Retrieved April 24, 2009, from Gilas Jewel Inc. v. Hotel Employees and Restaurant Employees Union. Re: Discharge of Fernando Vasquez. Case No. 13-300-02261-01. Arbitrators Award and Opinion : http://www.nilc.org/immsemplymnt/SSA_Related_info/arb_2002-02-19_GilaJewel.pdf American Federation of Labor and Congress of Industrial Organizations v. Michael Chertoff, Case No. 07-CV-4472 CRB (United States Distric Court. Northern District of California 2007). Archuleta, M., Omens, A., & Preciado, N. (2008, October 23). National Immigration Law Center. Retrieved April 23, 2009, from Civil Rights Coalition Charges That Finalized "No-Match" Rule Will Hurt American Workers and the U.S. Economy: http://www.nilc.org/immsemplymnt/SSA_Related_info/ssa010.htm Blanpain, R., Bisom-Rapp, S., Corbett, W., Hilary, J., & Zimmer, M. (2007). The Global Workplace: International and Comparative Employment Law - Cases and Materials. Cambridge University Press. Johnson, J. (2001). A Review and Synthesis of the Cost of Workplace Regulations. Mercatus Center - George Mason University. Knight, J., & Kudelka, L. (2007, June 18). South Carolina Department of Labor, Licensing and Regulation. Retrieved April 23, 2009, from Report of S.C. OSHA Findings in June 18, 2007 Charleston Sofa Super Store Fire: http://media.charleston.net/pdf/OSHAreport.pdf Lian, B. (2007, December 27). Washington Labor & Employment Wire. Retrieved April 23, 2009, from Stay Granted in Case Challenging DHS Safe Harbor Rule for Employers Receiving No-Match Letters: http://washlaborwire.com/category/agency-activity-alert/immigration-and-homeland-security/page/2/ NAFSA. (2008, October 28). Retrieved April 23, 2009, from Supplemental Final No-Match Rule: http://www.nafsa.org/regulatory_information.sec/regulatory_document_library.dlib/fees_forms_and_processing/supplemental_final_no_match NAFSA. (2009). Retrieved April 23, 2009, from DHS Rule on Employer Response to No-Match Letters: http://www.nafsa.org/regulatory_information.sec/regulatory_document_library.dlib/fees_forms_and_processing/dhs_rule_on_employer National Immigration Law Center. (2008, November). Retrieved April 24, 2009, from FACTS ABOUT - U.S. Department of Justice Guidance for Employers Following the Department of Homeland Security’s No-Match Letter–related Safe-Harbor Rule: http://www.nilc.org/immsemplymnt/SSA_Related_Info/no-match-OSC-guidance-2008-11-30.pdf Shriftman, E. (2004, November 9). Retrieved April 24, 2009, from Case #004-353/ Jaime Castro, Houseman / Emergency Hearing Requested by the New York Hotel and Motel Trades Coucil. Re: Unjust discharge of Jaime Castro, Houseman, for receiving no-match letter from the Social Security Administration: http://www.nilc.org/immsemplymnt/SSA_Related_info/arb_2004-11-09_NYMotel&Hotel.pdf U.S. Code Online. (2001, January 2). Retrieved April 23, 2009, from TITLE 8--ALIENS AND NATIONALITY. CHAPTER 12--IMMIGRATION AND NATIONALITY. SUBCHAPTER II--IMMIGRATION : http://www.usdoj.gov/crt/osc/ref/8usc1324a.htm U.S. Department of Labor. (2008, February). Retrieved April 24, 2009, from Employment Law Guide. Laws, Regulations, and Technical Assistance Services: http://www.dol.gov/compliance/guide/ U.S. Department of Labor. (2007, July). Retrieved April 23, 2009, from The Occupational Safety and Health Act of 1970 (OSH Act) (29 USC §651 et seq.; 29 CFR Parts 1900 to 2400) : http://www.dol.gov/compliance/guide/osha.htm U.S. Immigration and Customs Enforcement. (2009). Retrieved April 23, 2009, from Safe Harbor for Employers Who Receive a No-Match Letter: http://www.ice.gov/partners/employers/safeharbor/index.htm Read More