The Sky IS Falling

I was stunned to read the following in an article on the current Social Security “no match” notifications mess.  The quote, published in the October issue of Inside Counsel Magazine, reads as follows:

“You can fix a false negative if the agency has enough staffing to deal with it… It’s a logistical issue, not a legal issue.”

This assessment, attributed to the former General Counsel of the Dept. of Homeland Security, absolutely knocked me back in my chair. The gentleman, now in private practice, was discounting the potential impact of the proposed sanctions and fines targeting employers who do not act when notified by the Social Security Administration that some of their employees may not have matching numbers.

This advice is anathema not only to the letter of the law but to the over all enforcement-based philosophy of the Bush administration in its sunset year and it is truly an amazing statement coming from someone who has presided over immigration enforcement in the aftermath of September 11th.

Here’s what’s really going on, folks:

• In August, the US Dept. of Homeland Security gave specific instructions to employers on what they need to do to respond to “no match” letters received from the SSA.
• The regulations carried both a benefit and a threat: Those who followed the letter of the new rules were granted safe harbor; those who did not do so could face an increase risk of civil and criminal penalties, including fines and even jail time.
• The AFL-CIO, the ACLU, and a variety of other labor and civil rights groups– as well as diverse business interest groups — challenged these regulations in federal court, securing a reprieve from employers who were fearing the worst.  Some industries, such as the roofing sector, essentially advised an enforcement of “no match” letters would shut down their entire industry.

All of these facts suggest that quote, which casually suggests that fear over the enforcement of the “no match” letters is essentially unfounded, is truly dangerous counsel, and it troubles me that it appeared in the most reputable magazine aimed at in-house corporate counsel.  The position is predicated on an erroneous and naive notion, namely that the SSA has the necessary staffing to distinguish between those incorrectly identified as working illegally and those truly in violation of the US law.

In reality, the Social Security Administration has not been properly staffed in decades and it is certainly not in a position to respond on a real-time basis to these inquiries.   The enforcement efforts by HSA have been entirely that — enforcement.  No concurrent meaningful staff development to prevent and correct enforcement errors has EVER been considered by this administration…not with SSA, not with USCIS, not with DOL.  The philosophy of the Bush administration, documented time and time again and repeatedly ruled unlawful by federal courts and the U.S. Supreme court, has been as blunt as our international diplomacy:

Sanction first, fine, arrest shut down the suspected violator… and worry about the rule of law when the civil libertarians pitch a fit.

Invariably, in any enforcement action by the Executive targeting corporations, we are operating in a climate of "guilty until proven innocent by a federal court".  Innocent people lose jobs.  Companies lose productivity.  The economy continues to slide.  Moreover, the consolidation of multiple enforcement functions which were previously independant but are now within the absolute jurisdiction of the HSA, combined with the current Executive contempt for the rule of law all but eliminating independant federal agency decision-making, means something even worse that few have noted:

If an enforcement effort under one law is stayed by a federal court, nothing stops the Executive branch from using another enforcement tool to effect the same result.

Translation: if they can’t fine employers for SSA "no match" violations, send out the I-9 audit teams.  If the I-9 audit teams can’t get it done, send out the health inspectors, etc. 

I have never been in a role of Chicken Little, but that’s how I stand on this one: This is not a “logistical issue”, folks.  This is a legal issue with profound implications and ramifications for corporations which choose to keep their guard down in 2008.