Anti-Discrimination Guidance on SSA "No-Match" Letters
May 1, 2008
by Employment & Labor Law / Employee Benefits Group
Stinson Morrison Hecker LLP
Copyright © 2008
The Department of Justice’s Office of Special Counsel (OSC) recently issued important anti-discrimination guidance for employers who follow the Department of Homeland Security’s (DHS) safe harbor procedures after receiving a Social Security no-match letter.
DHS "Safe Harbor" – The DHS’ “safe-harbor” procedures, issued in August 2007 (and enjoined by a federal court) and modified by a proposed supplemental rule announced by DHS on March 21, 2008, offers employers who receive no-match letters from the Social Security Administration (SSA) a safe-harbor in a related immigration enforcement action if those employers follow the series of steps set forth in the no-match rule to ensure that the information provided by affected employees to confirm their work eligibility is genuine. The no-match rule provides that an employer may terminate an employee whose work eligibility could not be confirmed after the employer has followed the procedures that the rule sets forth.
Office of Special Counsel – The OSC enforces the anti-discrimination provisions of the Immigration and Nationality Act (INA). The law protects United States citizens and certain work-authorized persons from intentional employment discrimination based upon citizenship or immigration status, national origin, and unfair documentary practices relating to the employment eligibility verification process. The law further prohibits retaliation against individuals who file charges with the OSC, who cooperate with an investigation, or who otherwise assert their rights under the INA.
- Investigations – OSC is required to investigate charges of discrimination alleging a violation of the INA. OSC may, on its own initiative, also conduct investigations of unfair immigration-related employment practices.
- Alleged Victim Must be an Authorized Worker – As a threshold matter, if OFC receives an allegation of discrimination by an employer in applying the safe harbor procedures, it will first ascertain whether the alleged victim is an authorized worker who is protected from discrimination under the INA. If it concludes that the alleged victim is protected, OSC will initiate an investigation to determine whether there is reasonable cause to believe that the employer has engaged in unlawful discrimination.
- Totality of Circumstances – It is OSC’s practice to examine the totality of relevant circumstances in determining whether there is reasonable cause to believe that an employer has engaged in unlawful discrimination.
- Complaints, Penalties and Private Right of Action – Based upon the outcome of its investigation, OSC may bring a complaint before an administrative law judge seeking remedial relief for victims, injunctive relief to prevent future violations, and/or civil penalties. The INA also provides a private right of action
Discharge Without Attempting to Resolve Mismatch – "An employer that receives a SSA no-match letter and terminates employees without attempting to resolve the mismatches, or who treats employees differently or otherwise acts with the purpose or intent to discriminate based upon national origin or other prohibited characteristics, may be found by OSC to have engaged in unlawful discrimination."
Employers that Follow Safe Harbor Procedures – "However, if an employer follows all of the safe harbor procedures outlined in DHS’s no-match rule but cannot determine that an employee is authorized to work in the United States, and therefore terminates that employee, and if that employer applied the same procedures to all employees referenced in the no-match letter(s) uniformly and without the purpose or intent to discriminate on the basis of actual or perceived citizenship status or national origin, then OSC will not find reasonable cause to believe that the employer has violated [the] anti-discrimination provision, and that employer will not be subject to suit by the United States under that provision."
Stinson Morrison Hecker LLP is one of the country's largest law firms with more than 360 attorneys in more than 45-industry-focused areas. If you would like more information regarding this summary, please contact one of our Employment & Labor Law and Employee Benefits attorneys.
Law at Work is designed to give general information and is not intended to be a comprehensive summary or to treat exhaustively the subjects and matters covered. The information appearing herein does not constitute legal advice or opinions. Such advice and opinions are provided only upon engagement with respect to specific factual situations. Nothing contained herein shall be considered as an admission in any matter or controversy.
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