"Hasta la vista, baby!" The Bush administration has announced it will return in March with a revised plan to pair Department of Homeland Security (DHS) guidance letters with Social Security Administration (SSA) no-match letters.

This past August, the administration issued a new DHS rule apparently intended to flush out undocumented immigrants. The rule directed SSA to add a letter from DHS to the envelopes containing the no-match letters SSA sends employers informing them about alleged discrepancies between their employee records and SSA's database.

The DHS letter would have warned employers to expect a stiff fine if they did not fire within 90 days any worker who couldn't resolve the data discrepancy. Up to now, no-match letters have been purely informational, with no penalty attached for failure to resolve discrepancies.

An alliance of labor unions, business groups and civil-rights groups filed suit on Aug. 28 to kill the new DHS rule. On Oct. 10, Judge Charles R. Breyer of Federal District Court in San Francisco issued a preliminary order blocking implementation of the rule, agreeing with plaintiffs that DHS had failed to survey the likely impact on small business. Undeterred, DHS announced Nov. 25 it was asking Breyer to suspend the case so it could conduct the required survey and rewrite the rule.

The paired letters would have given the misleading impression that DHS and SSA were sharing information and working hand in glove. But Pedro Roman, a Bloomington-area advocate for Hispanic civil rights, wants employers to know that the new rule is a bluff.

"People who submit their personal information to SSA do so under the assumption that it will be used only for the purposes for which it was collected," he says. "Legally and ethically, it cannot be used for another purpose. To do so would be a crime. Unfortunately, many employers, especially those who are immigrants or who hire immigrants, don't understand that it's not mandatory to comply with Homeland Security's demand that they fire employees or resolve data discrepancies with Social Security."

William Jarrett, regional public affairs specialist in SSA's Chicago office, points to Section 6103 of the Internal Revenue Code to support Roman's point that SSA database information cannot be shared with DHS.

More serious than this apparent attempt at deception, the new DHS rule would cause significant problems for workers and employers, say its critics. According to the American Civil Liberties Union Web site, the paired letters would have been mailed to "approximately 140,000 employers around the country," affecting "approximately 8 million workers."

The ACLU cited a statement by SSA's Office of the Inspector General that "12.7 million of the 17.8 million discrepancies in SSA's database - more than 70 percent - belong to native-born U.S. citizens." Typically, those discrepancies are a matter of typographical errors, name changes due to marriage or divorce, or use of multiple surnames. Trying to deal with the huge SSA bureaucracy to resolve a data discrepancy within the required 90 days would impose a heavy burden on employers and employees, the ACLU argues.

"Rather than go through this burdensome process, some employers are likely to simply fire workers whose names appear on the letters - including U.S. citizens and other authorized workers - without giving employees a chance to correct the information," the ACLU reasons. "Unscrupulous employers will simply ignore the letter and continue to employ undocumented workers."

The new rule would also hand anti-labor forces a powerful weapon to stymie union organizing, undermine contract campaigns and negate arbitration awards, according to the AFL-CIO.

The following is among several incidents documented in "SSA No-Match Impact on Unions," prepared by the AFL-CIO: "During organizing campaign of food service workers at U.C. Irvine, employer claimed to have received no-match letters and fired a large percentage of the workforce that supported the union. All of the workers that were fired were long-term employees, the highest in seniority, and with the highest pay, and were replaced with new-hires [sic] at lower wages."

A second example from the AFL-CIO report: "In May, the employer received a no-match letter with more than 50 names listed as no-matches. At the time, the employer believed that the members were going to abandon the union. In July, the members surprised the employer and voted for a new contract. Within weeks of the contract ratification, the employer began demanding that the employees correct the no-match issue or else lose their jobs."

For a special category of workers - transgender workers - the DHS rule would likely lead to increased job discrimination. Transgender people have received SSA no-match letters based solely on a gender no-match, according to John Otto, Privacy and Documentation Program Coordinator for the National Center for Transgender Equality.

"It's been happening with increasing frequency in the last few years," he asserts.

Getting outed as transgender at work because of a no-match letter can be "embarrassing and freaky and cause an employee to worry about the gossip mills," says Donna Cartwright, media associate for Pride at Work, AFL-CIO.

And it could lead to harassment or getting fired. According to the National Gay and Lesbian Task Force, 63 percent of the U.S. population is still not covered by laws that forbid job discrimination based on gender identity or nonconformity to gender norms.

Otto has heard of one unfortunate example. A transgender teenager who'd transitioned socially from female to male was confronted by his boss at an after-school job for a beverage company. The boss had received a gender no-match letter for the youth and began to harass him and then denied his request for a transfer to another outlet, contrary to company policy.

SSA has sent no-match letters annually since 1979 to individual employees with data discrepancies, according to Jarrett. In 1994, SSA began sending no-match letters also to those employers who file wage reports with SSA - but only after a threshold had been reached.

Before tax year 2001, says Jarrett, employers received a no-match letter if more than 10 forms involved mismatches and the total represented more than 10 percent of the employer's total report. In tax year 2001, even one form involving a mismatch would generate a no-match letter. In tax year 2002 and continuing to the present, the threshold returned to more than 10 forms, but a no-match letter would be sent if that number represented more than 0.5 percent of the employer's total report.

The pairing of no-match letters with DHS guidance letters looks like another way since 9/11 that the Bush administration has attempted to skirt the law in an effort to identify and deport illegal immigrants.

Donna Cartwright shakes her head at this scattershot approach and its seeming indifference to the unintended consequences for ordinary citizens.

"They're not very scrupulous about getting innocent people in trouble," she says.

John Clower can be reached at jclower2@yahoo.com.

To view the various documents in this case:
AFL-CIO vs. Chertoff)