Federal Court Stays New Rule Requiring Employers To Terminate Employees Who Cannot Prove Their Right To Work In The United States
The Social Security Administration ("SSA") regularly issues "No-Match" letters to employers when it determines that the information provided by an employee on his or her W-2 form does not match that found in the SSA's database. On August 15, 2007, the Department of Homeland Security adopted a new rule entitled "Safe Harbor Provisions for Employers Who Receive a No-Match Letter." The new rule provided employers 90 days to clear up the discrepancy noted in a No-Match letter and, if unable to do so, the employer would be required to terminate the employee. The rule was scheduled to take effect on September 14, 2007.
The ACLU, AFL-CIO and various other union-aligned interests sued to block the new rule, arguing both that the new rule was not legally authorized and that No-Match letters are often mistakenly sent due to clerical errors or the failure of the SSA to properly update its records upon an employee's marriage or divorce.
On August 31, 2007, a federal judge agreed that the above arguments "raised serious questions" which required further consideration and, therefore, temporarily stayed the new rule until at least October 1, 2007, when a Court will more fully consider the issue. Accordingly, the "Safe-Harbor" rule will not take effect on September 14, 2007. As additional information becomes available, we will provide an update on this website.