Federal Court Issues Preliminary Injunction on No-Match Program
Posted Oct 19, 2007
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A U.S. federal court judge issued a preliminary injunction on October 10, 2007, preventing implementation of the “no-match” letter program developed by the Department of Homeland Security, pending further hearings. As was reported to MurthyDotCom and MurthyBulletin readers in our September 21, 2007 article, No-Match Regulation is on Hold, the U.S. Immigration and Customs Enforcement (ICE) issued the no-match regulation on August 15, 2007, as part of the stepped-up worksite enforcement initiative. The no-match regulation essentially is a program wherein an employer receives letters from either the Social Security Administration (SSA) or the Department of Homeland Security (DHS) if an employee's documents pertaining to employment eligibility do not match the records of the SSA or DHS. Employers then face potential liability for continuing the employment of such an employee. MurthyDotCom and MurthyBulletin readers learned of this in our August 17, 2007 article, Liability for Employers Who Receive No-Match Letters.
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The regulation was challenged, and the plaintiffs filed motions requesting that the Court prevent the implementation of the regulation. The injunction was issued as a result of the court's hearing on October 1, 2007, when the parties explained their respective positions with regard to the regulation. This injunction follows a previously-issued temporary injunction that prevented implementation of the regulation until the October 1, 2007 hearing.
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Court's Ruling Supports Plaintiffs' Concerns
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The Plaintiffs (labor groups among them), the American Civil Liberties Union, the U.S. Chamber of Commerce, and immigration groups claimed that mistakes in the federal database would penalize individuals entitled to work legally in the United States. Essentially agreeing with the Plaintiffs, U.S. District Court Judge Charles Breyer noted that "[t]he magnitude of DHS's safe harbor rules is staggering. If enacted, DHS and SSA will immediately mail no-match packets to 140,000 employers, identifying no-matches for approximately eight million employees. There can be no doubt that the effects of the rule's implementation will be severe."
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In response to the ruling, the DHS issued a press release, indicating that the agency is disappointed by the federal court's decision to impose a preliminary injunction on the no-match regulation and that it is "reviewing the decision with the Justice Department and will examine all of our options, including appeal."
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Conclusion
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While the preliminary injunction does not permanently remove the no-match regulation, it does signify the court's intolerance of overly-broad measures to curb unlawful employment, as these affect many employers and employees who have valid employment authorization. As always, MurthyDotCom and MurthyBulletin readers will be apprised of further developments in this important case.