The plaintiffs claim that because the SSA's database is full of errors, many citizens and legal immigrants could end up losing their jobs. They also argue that the DHS has exceeded its authority by seeking to use the SSA to enforce immigration laws.
US District Judge Maxine Chesney in San Francisco granted a nationwide temporary restraining order Aug. 31, blocking the SSA from sending letters with ICE inserts. The order is in effect until Oct. 1, when another federal judge here, Charles Breyer, will decide whether to grant another injunction.
"DHS is trying to create a huge terror, to give the illusion that they are doing something," Bill Sokol, a lawyer with Weinberg, Roger, and Rosenfeld, the firm representing the Central Labor Council of Alameda County, told us. "Workers are afraid, but we must dial down people's fear and terror under our new gestapo."
He said the law will have little impact if employers understand it and do not abuse it. If employers overreact, however, the result could be disastrous. Sokol said employers are already firing employees immediately after receiving the letters.
Unions and immigrant workers across the country have charged that no-match letters have been used to stifle workers' rights since the SSA began sending them to employers in 1994. Activists in the Bay Area have played a key role in resisting these efforts, setting national precedents upholding worker rights.
When a San Francisco Travelodge fired workers after they began organizing with a union in 1999, allegedly due to Social Security no matches, the terminated employees took it to court. The next year they won an arbitrator's decision that the firing, based solely on no-match letters, was a violation of their union contract.
Local community pressure on the SSA also resulted in the inclusion of cautionary text in the letter. The no-match letter now states that employers "should not use this letter to take any adverse action against an employee.... Doing so could, in fact, violate state or federal law and subject you to legal consequences."
Activists at Oakland's Labor Immigrant Organizers Network wrote a resolution in 1999 asking the AFL-CIO to renounce its support of the employer-sanctions provisions of the 1986 Immigration Reform and Control Act, the federal law that for the first time made it illegal for an undocumented worker to hold a job. Their agitation is credited in part for a resolution the AFL-CIO passed in 2000 calling for the repeal of sanctions and for a legalization program for undocumented workers.
The letters remained a potent tool for antiunion activity. A 2003 survey by the Center for Urban Economic Development at the University of Illinois at Chicago found that 25 percent of workers listed in no-match letters reported that their employers fired them in retaliation for complaining about inadequate worksite conditions. More than one in five workers reported that their employer fired them in retaliation for union activity.
San Francisco opposed the DHS no-match regulation when it was proposed last year. An August 2006 resolution by the Board of Supervisors said it may lead to employers "using it as a device to fire, intimidate, harass, or underpay employees." It promised that the city would defy the regulation if it received a no-match letter for a city employee.
The San Francisco Chamber of Commerce and the US Chamber of Commerce also came out against the regulation.
But some employers embraced the proposed regulation. Uniform manufacturer Cintas fired hundreds of employees across the country, allegedly responding to the proposed guidelines after receiving no-match letters during a union organizing drive.