October 28, 2008

No-Match Rule and Antidiscrimination Protections

The Department of Homeland Security (DHS) No-Match Rule, published in the Federal Register on October 28, 2008, provides that an employer may legally terminate an employee whose work eligibility can not be confirmed after the employer has followed the procedures set forth in the rule. In the Final Rule, which is still not being implemented pursuant to a District Court injunction, DHS stated that “person’s seeking guidance regarding employers’ anti-discrimination obligations in the following safe harbor procedures….should follow the direction provided by Department of Justice published in today’s [October 28, 2008] edition of the federal register.” A summary of their position is as follows:

The DOJ’s Office of Special Counsel (OSC) stated in the Federal Register that despite the safe harbor procedures outlined in the rule, it retains the authority to open an investigation into alleged acts of discrimination by employers. The investigation procedures will begin with a preliminary review of whether the alleged victim is an authorized worker protected from discrimination. If the worker is authorized, then OSC will initiate an investigation to determine whether there is reasonable cause to believe that the employer has engaged in unlawful discrimination. The Department of Justice also stated that an employer that receives a Social Security Administration 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. However, DOJ underscores the fact that 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, then OSC will not find reasonable cause demonstrating that the employer violated anti-discrimination provisions of IRCA. Unless, the employer fails to apply 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. Despite DOJ’s clarification, many employers are still wary of a possible wave of antidiscrimination suits by employees terminated pursuant to the No-Match Rule procedures. Only time will tell what protections the “Safe Harbor” provisions truly afford employers.

The issues surrounding termination of workers pursuant to the No-Match Rule are broad, so experienced counsel should be contacted prior to taking any adverse action against an employee. Questions about these antidiscrimination provisions, or the No-Match Rule in general, should be directed to one our experienced Immigration attorneys.

As always, GT will keep you up to date on the most recent regulations affecting your business.