Merry Christmas! You're fired.
This could be the scenario for over eight million workers this coming holiday season, if a new regulation announced by the Bush administration goes into effect. But within days of a Washington press conference making the rule official, a federal judge stepped into the fray and stopped the administration from going through with its plan -- at least for the moment.
In San Francisco, U.S. District Judge Maxine Chesney ruled in favor of unions, along with the ACLU and the National Immigration Law Center, which have drawn the line on tactics the Homeland Security Department is using for immigration enforcement. At issue is a proposal that would have required Social Security to send out letters on September 4 to over 160,000 employers, listing the names of at least eight million workers. The letters would have listed those employees whose numbers don't match Social Security Administration (SSA) records. Workers would then have had 90 days to come up with new numbers.
The 90 days would have expired near Christmas. Employers would then have been required to fire any worker who could not produce a number the SSA could verify. Judge Chesney's order stopped the SSA from sending the letters, and further hearings will take place to decide whether or not to make the temporary prohibition permanent.
The new regulation assumes that anyone who can't provide an SSA-verified number is not in the country legally. An estimated 12 million people in the United States have no legal immigration status. Most work. In order to get hired, they have to present a Social Security number to their employer. Some use invented numbers, while others borrow existing numbers that belong to someone else. This actually subsidizes the Social Security fund, since undocumented workers can't claim benefits, although they're paying deductions.
If the regulation is implemented as announced, as many as 8 to 9 million undocumented immigrants would lose their jobs. Earning close to minimum wage, most of their families live from paycheck to paycheck. They would suddenly have no means to buy food, pay rent, clothe their children, or send them to school. Undocumented immigrants are ineligible for welfare, food stamps, unemployment insurance, and almost all other public benefits.
But their employers, and other workers would also feel the impact. Entire industries, like agriculture, meatpacking, construction, hotels, food service, and health care are dependent on immigrant labor. Forcing many businesses in those industries to fire much of their workforce would bring them to a halt. Even citizens and legal residents doing jobs dependent on the labor of undocumented workers, such as packing and transporting produce and meat, or doing highly skilled work on construction sites where undocumented workers do the less-skilled work, would also lose their jobs. Families with relatives in nursing homes would have few options for care when the caregivers themselves are gone.
Workers in these jobs have been among the most active in organizing unions in many states over the last decade, and unions, in filing the suit, want to defend them. This marks an important change in the way the U.S. labor movement looks at immigration. Two decades ago, unions saw undocumented immigrants as low-wage competition and supported passage of the Immigration Reform and Control Act in 1986. That law prohibited, for the first time, employers from hiring the undocumented. Labor's justification for support was that without jobs, people would return to their home countries.
Workers did not go home. In fact, U.S. trade policy in countries like Mexico created economic displacement that caused even more migration. But the law became a weapon often used by employers to intimidate and punish immigrant workers when they tried to organize or defend their rights. Eventually, in 1999, the AFL-CIO called for the repeal of employer sanctions, saying the law criminalized the labor of undocumented immigrants, and undermined the efforts of all workers to better conditions.
The Bush regulation is a back-door means for ramping up enforcement of that law. But is not the first time Social Security no-match letters have been used for this purpose. For the last two decades employers have threatened, and often terminated immigrant workers for discrepancies in their Social Security numbers after those workers challenged management. At the Woodfin Suites in Emeryville, California, the hotel threatened no-match firings after workers demanded compliance with the city's living wage law. At the Cintas laundry chain, plant managers fired hundreds of employees last year during UNITE HERE's national organizing drive. At the Smithfield pork plant in North Carolina, no-match firings virtually ended plant floor union activity for a time.
AFL-CIO President John Sweeney charged that "this rule is a new tool to repress workers' rights in the name of phony immigration enforcement. Employers have used SSA 'no-match' letters to fire workers when they try to organize, when they report a wage claim or workplace hazard, or when they get injured. The new rule gives employers a stronger pretext for engaging in such unlawful conduct."
Until now, however, there was no requirement that employers terminate workers listed in the letters. In fact, after community and labor protest over the use of the letters to fire workers in the late 1990s, SSA agreed to include a paragraph warning employers not to interpret a no-match as evidence of the lack of legal immigration status.
On August 10, when Homeland Security Secretary Michael Chertoff told reporters that Social Security would send letters to all sizeable employers starting September 4, he was changing that rule. Henceforth, if employers didn't terminate those listed in the letters, DHS would assume management had "constructive knowledge" of their lack of immigration status. DHS would then find them in violation of employer sanctions and fine them.
The organizations that filed the suit, however, including the AFL-CIO, the Alameda County and San Francisco Central Labor Councils, and the San Francisco Building Trades Council, made a tactical decision not to challenge the regulation over its impact on the undocumented. Instead, they pointed to the other workers who would be swept into the net as well, and predicted that many U.S. citizens and immigrants with legal residence would also be fired.
Errors and no-matches in the Social Security database are caused by many innocent factors, such as typographical errors and name changes due to marriage or divorce, or the use of multiple surnames. SSA's inspector general estimates that there are 17.8 million no-matches, and that over 70 percent of the numbers involved are used by U.S. citizens. That's 12.7 million people who would also have to find a way to prove they were the rightful holders of the cards, or face termination. SSA hasn't been able to verify millions of additional records, which could lead to even further no-match letters.
Social Security was never intended to be a means of determining legal status. It is a system set up to guarantee payments to workers when they're too old to work, or become disabled. The database is meant to ensure that payments are made into the right accounts, and that the benefits are available when people need and qualify for them. No match letters were originally intended as a clerical means to ensure that SSA records are correct, so that the payments can be properly made.
The suit charges that, because of the inaccuracies in the database, the Bush rule would violate workers' rights and impose burdensome obligations on employers. In preventing the implementation of the regulation until October, Judge Chesney said there was a "serious question" about whether it was authorized by law. The government would not be unduly inconvenienced by a delay, she argued, compared to the hardship workers and employers would endure.
Underlying the controversy over the regulation itself, however, is an attempt by the administration to implement through executive order provisions of the immigration bill defeated in Congress a few months ago. That bill also would have set up the same system of no-match checks, as well as increased immigration raids. This increased enforcement scheme was one centerpiece of the Bush administration's immigration reform program. The other proposal linked enforcement to new contract labor programs.
This, too, was part of the program announced at the August 10 press conference. Following Chertoff, Commerce Secretary Carlos Gutierrez reassured employers worried about the loss of their workers, saying they could avail themselves of existing guest-worker programs. These allow corporations to recruit workers outside the United States and bring them here on visas tied to their jobs. They've been condemned by unions and immigrant communities because of extensive worker abuse. In recent years companies have pushed to relax limits on the number of guest workers they can recruit, and to cut already-weak labor protections. Gutierrez proposed to give them what they've been seeking.
For two years, while the bill was before Congress, DHS used an extensive wave of immigration raids to pressure legislators, unions and immigrant communities to accept its reform proposals. At the August 10 press conference, Chertoff and Gutierrez were essentially threatening to cause economic chaos and personal hardship to gain the same political objective. The suit will at least delay that process.
But unions and immigrant rights groups have also been frustrated and disappointed that so few political leaders, especially Democrats, spoke out publicly in opposition to the regulation. House Speaker Nancy Pelosi even welcomed it, saying that "securing our border remains a top priority for the New Direction Congress."
"Democrats should remember that undocumented people live in Latino and Asian families and communities that include millions of citizens," responded Nativo Lopez, president of the Mexican American Political Association. "If they don't defend us now, they give us no reason to come out to the polls a year from now."
That use of immigration enforcement as a wedge issue to weaken Democratic support is undoubtedly part of the administration's calculations as well. Karl Rove may be gone, but his spirit lives on in the White House.