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It's a thin, seemingly innocuous letter. The Social Security Administration mails it when names and Social Security numbers don't match on an employee's I-9 form. The intent is to make sure workers receive their benefits.
But unions and immigrants have long charged that unscrupulous employers use SSA "no match" letters to harass undocumented workers and squelch union organizing efforts. Now, after a failed immigration debate in Congress, the George W. Bush administration wants to pass a regulation that would explicitly turn the letter into an immigration enforcement tool.
Activists fear this could result in massive firings and retaliation against workers organizing with unions. Employers complain it could lead to an economic slump in industries dependent on undocumented labor. A temporary injunction granted by a San Francisco judge is the only thing holding back letters across the country; it ends Oct. 1.
Bay Area activists have been national leaders at the intersection of immigrant rights and labor movements. They are now shaping national policy on this new regulation in the courts and promise wide-scale street action and workplace walkouts if it goes into effect.
A look at past and present related Bay Area organizing may shed light on the future of the national issue.
US companies file hundreds of millions of W-2 forms with the SSA every year. The SSA uses them to calculate how much it owes workers at retirement. When the name and the Social Security number do not match, the SSA sends a "no match" letter to the employee to clear up the discrepancy. The letters are also sent to employers who have more than 10 employees with no match. These letters have nothing to do with immigration law, and employers are not required to take any adverse action against these employees.
But under the new Department of Homeland Security regulation, no-match letters may be seen as evidence that an employer knowingly employed an undocumented worker. The letters would include a leaflet from US Immigration and Customs Enforcement informing employers that they must fire workers who cannot resolve no matches with the SSA or reverify their work authorization within 93 days. If the companies do not, they may be subject to fines or criminal charges.
The rule was drafted more than a year ago but was not announced by Homeland Security secretary Michael Chertoff until Aug 10. "The magnet that brings most economic migrants into this country is work," he explained. "And if we have worksite enforcement directed at illegal employment, we strike at that magnet."
Brooke Anderson, an organizer with the East Bay Alliance for a Sustainable Economy, told the Guardian that this is an unlikely scenario. Workers will not leave the country; they will simply be forced into underground economies, rotate through different jobs, and become even more vulnerable.
Anderson was among a delegation of more than 30 labor, faith, and community leaders that presented a letter Aug. 30 at the regional SSA office in Richmond. The letter outlined their concerns and asked that the SSA send out no-match letters only to employees, not employers.
"DHS is using an incomplete, hodgepodge system intended to ensure our economic security to implement a regressive immigration policy that Bush failed to pass in Congress," Anderson told us. "The SSA as an agency should have a spine and say no to DHS and no to the Bush administration."
If the ICE inserts do go out with no-match letters, she predicts walkouts and massive street actions.
The regulation is also being challenged in a lawsuit filed by the Central Labor Council of Alameda County. The AFL-CIO, the American Civil Liberties Union, and the San Francisco Central Labor Council have joined it. 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. Organizers said the company targeted employees involved in the union and jumped the gun on new regulations.
The Woodfin Suite Hotel in Emeryville fired 21 housekeepers in December 2006, also allegedly due to no-match letters. The workers claim the Woodfin retaliated against them for organizing with the East Bay Alliance for a Sustainable Economy, a labor-affiliated think tank, to enforce the living-wage law (see "Calling in the Feds," 6/13/07).
A yearlong campaign targeting the Woodfin has brought the issue to a national audience.
Organizers say the regulations are far less strict than the news media has portrayed them, adding to an atmosphere of hysteria and fear among employers and workers. Francisco Ugarte, a lawyer with the Oakland firm of Leonard Carder, held up several San Francisco Chronicle articles at a Sept. 13 workshop for union organizers as examples of media inaccuracies.
An employer is not required to fire an employee after 90 days, as news accounts have stated. The employer has 90 days to fix discrepancies, and the worker has three days after that to fill out another I-9 form with a new Social Security number. If it appears credible, employers must accept the new I-9, Ugarte said.
The ICE insert in the SSA letter will terrify employers, he predicted, but the rule does not create any new information sharing between the SSA and other governmental agencies. The SSA is actually prohibited by law from sharing private data with any other governmental agencies.
There are also no automatic fines assessed to employers, as news accounts have implied. ICE will only levy fines if it raids employers and finds that they did not address no-match discrepancies. It is unlikely that the DHS will be able to enforce the regulations; in announcing them, Chertoff said the agency would rely largely on self-policing.
Even if this is the case, organizers fear that the DHS's no-match regulation will provide employers with another tool to squelch immigrant workers' rights. Comprehensive immigration reform is still needed to reconcile employers' demands for workers, immigrants' needs for employment, and US immigration policy.*