Judge stays rule requiring employers to fire illegal immigrants

More good news for immigrant, and worker rights. Let's stay hopeful that the October 1 outcome will be equally positive. -Patricia

Bob Egelko, Chronicle Staff Writer
Saturday, September 1, 2007

A federal judge in San Francisco blocked the Bush administration Friday from imposing a rule requiring employers to fire workers identified as illegal immigrants in government records or face possible prosecution.

U.S. District Judge Maxine Chesney granted a nationwide temporary restraining order sought by the AFL-CIO and affiliated unions to keep the government from sending letters to employers demanding that they clear up workers' citizenship status.

The order will be in effect until Oct. 1, when another federal judge will consider whether to grant an injunction that would block the rule until a trial on the unions' lawsuit against the government is held.

Chesney said there was a serious question about whether the Bush administration's planned crackdown on illegal workers was authorized by law. She also said the government would suffer little inconvenience from a delay, compared with the hardship to employees who might be improperly identified as illegal immigrants.

Officials had planned to send the first warning letters Tuesday and mail 140,000 letters to employers by Nov. 9.

Justice Department lawyer Daniel Bensing told Chesney that the government wants the issue resolved before Sept. 14, when the new rule was scheduled to take effect and objected to a delay until at least October. But he did not indicate any intention to challenge the judge's order.

Homeland Security Secretary Michael Chertoff announced the rule Aug. 10 as a means of toughening the little-enforced 1986 law that subjects employers to criminal prosecution or civil penalties for knowingly employing illegal immigrants.

Employers now can satisfy the law if they obtain specified identification documents from newly hired workers. After that, the government notifies employers if the Social Security number on a worker's W-2 tax form doesn't match the number in the Social Security database. That employee might not have earnings credited for Social Security benefits, but no action is taken against the employer.

Under the new rule, employers receiving such a "no-match" letter would have to fire the worker or face possible civil fines and criminal penalties if the discrepancy isn't cleared up within 90 days. The change would be likely to have the greatest effect in California, where several industries employ large numbers of undocumented workers.

The unions argued that past experience with no-match letters shows that they are often sent mistakenly because of clerical errors by employers or the government in recording numbers or because of name changes after a marriage, divorce or other reasons.

The AFL-CIO also said Social Security was never intended to be a means of tracking down undocumented immigrants and is so cumbersome that legal employees will be unable to clear up discrepancies in 90 days.

The unions argued that the 1986 law, which prohibited employers from knowingly employing illegal immigrants, required only a document check for newly hired workers, and did not authorize the government to order additional verification after hiring.

Government lawyers said the new rule is consistent with the 1986 law, and merely gave employers an additional way to resolve uncertainties about their employees' immigration status and avoid liability.

The rule was drafted and circulated for comment more than a year ago and lay dormant until Chertoff's Aug. 10 announcement. Bensing, the government's lawyer, said Friday that the administration had held off while awaiting congressional action on a comprehensive immigration bill and activated the regulation only after the bill was defeated.

Chesney said her decision to block the rule didn't necessarily mean she thinks it is illegal. But she told Bensing that it would be important for the government to present evidence showing a connection between a no-match letter and "a reasonable inference that the person is here illegally."

Lawyers for the unions said they were encouraged.

"We're confident that the rule will be struck down," said attorney Scott Kronland.