‘No match’ documentation ruling confuses farmers

Judge’s order to block rule to match Social Security number with worker poses problem

   PORTLAND (AP) — A court order temporarily blocking a rule intended to shift more burden on farmers to show they are not hiring undocumented workers has some Northwest growers and farm organizations wondering what’s next. 

   Plaintiffs say that with massive Social Security Administration discrepancies, many American citizens as well as illegal immigrant workers could be affected, with firings weakening labor pools already stretched thin in sectors such as agriculture. 

   “Our guess is that it is temporary, but you can never second-guess what a judge will do,” said Don Schellenberg, legislative affairs director for the Oregon Farm Bureau Federation. 

   “We have to keep planning as if it will move ahead and make members aware of legal and ethical obligations.” 

   Federal judge’s ruling 

   A federal judge in San Francisco last month put a temporary restraining order on the so-called “no match” letters that would have shifted responsibility for verifying that Social Security numbers presented by workers matched those in federal files. Another hearing is set for Oct. 1. 

   The Department of Homeland Security rule would have had the Social Security Administration send letters this month to employers with 10 or more employees whose Social Security numbers could not be verified. 

   If an employee or employer could not solve his Social Security problems within 90 days, the employer would have to assume he is undocumented and fire him or face penalties. 

   But plaintiffs cited a report from the Office of the Inspector General saying that 12.7 million of the 17.8 million discrepancies in the Social Security Administration’s database — about 70 percent —involve nativebor  U. S. citizens, not undocumented workers. 

   “ The Social Security Administration is not set up to play this role,” said Lucas Gutentag, a lawyer for the American Civil Liberties Union, one of the plaintiffs. He called it a Social Security issue, not an immigration issue. 

   “If there is a problem with Social Security numbers or records and if the Social Security bureaucracy cannot straighten it out within 90 days, you pay the consequences, you get fired.” 

   Plaintiffs said discrepancies can arise because of typographical errors, marriages or divorce. 

   For years many employers generally ignored the no match letters, which have been advisory. Others do not. 

   “Many employers who get a letter noting discrepancies don’t wait, and boom, the person is fired the next day,” he said. 

   Diminished work force 

   The U.S. Chamber of Commerce, the National Restaurant Association and other employer groups worried about a diminished work force support the lawsuit, Gutentag said. 

   Dave Carlson, who heads the Washington Apple Commission, said Tuesday that several lawyers who read the ruling came to different conclusions. 

   “ The difficult thing is that the government can’t enforce its own laws so it’s passing (the responsibility) on to the employers,” said Carlson, who also is a major apple grower. 

   Carlson said verification can sometimes take longer than the 90 days a worker would be given to resolve his issues with Social Security. 

   By then, he said, the employee may be gone and show up later with a new name and new documents. 

   Much of the agricultural work force is transient, with easy access to many of the bogus first-rate documents that can be presented as “proof” of legal residence. 

   He said growers who “do not accept at face value what appear to be legitimate documents can be sued” for discrimination. 

   Gutentag said that is intended to protect anyone who may look foreign from being rejected or fired by employers who want to play it safe and hire only Americans. 

   Gutentag said the new ruling doesn’t change the 1986 law requiring employers who hire under immigration laws go through the verification process. 

   U.S. District Judge Maxine Chesney of San Francisco ruled last month that there are substantial questions about whether the no match rule oversteps the statutory authority of Homeland Security and Social Security. 

   Schellenberg and Barry Bashue, president of the Oregon Farm Bureau Federation, said a farm labor shortage has been building Oregon for a few years and likely will get worse.

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