A lawsuit filed in federal court in San Francisco has successfully thwarted implementation of a poorly conceived rule issued by the Department of Homeland Security this past August (see Businessweek article).  The rule, part of the Bush war on illegal immigration, would have forced employers to fire workers within 90 days if their Social Security information could not be verified or face potential prosecution for knowingly hiring illegal immigrants.  This marks a victory for all workers: documented and undocumented, unionized and not.

Specifically, the rule said that if employers received a “no-match” letter – a notice issued by the Social Security Administration (SSA) that the identity information submitted by the employer for a worker does not match the agency’s own records – then the employer must either resolve the discrepancy within 90 days or fire the employee.  The thinking was that such a measure would catch undocumented workers that purchase false Social Security numbers in order to gain employment.

The plan was ill-conceived from the beginning.  Regardless of one’s feelings about how this rule would impact undocumented workers, opponents of the rule have made a persuasive case that it would negatively impact many legal workers as well.  An AFL-CIO press release reveals that the Office of the Inspector General of SSA has discovered that 12.7 million of the 17.8 million discrepancies in the database – more than 70% – belong to native-born U.S. citizens.  Common causes for these mistakes include clerical errors, the SSA’s issuance of duplicate Social Security numbers, or name changes after marriage or divorce.  The AFL-CIO also argues that working through the “huge SSA bureaucracy” in just 90 days is a “formidable challenge” – which, as the rule’s opponents note in their Complaint to the court, even SSA has admitted to be unable to meet in “difficult cases.”  In addition to attacking the rule on the above grounds, the lawsuit also argued that the rule violates the Administrative Procedure Act because it is not the product of reasonable decision-making and is “arbitrary and capricious.” 

In early October, Charles Breyer, the San Francisco-based federal court judge responsible for the case, granted an injunction preventing implementation of the rule until the lawsuit was decided.  The recent news is that the Bush Administration has decided to forego fighting this legal battle and will instead go back and revise the rule.

The problematic nature of the initial plan is attested to by, what the NYT called, the “odd-fellow alliance of labor unions and business groups” that opposed it.  Before the injunction was granted, SSA was prepared to mail out 141,000 no-match letters that covered over eight million workers.  This would have created a nightmare for both the employers and employees that would be forced to scurry to resolve discrepancies in their records.   

However, I wonder if the NYT writer might also be suggesting that there was something odd about the alliance between organized labor and undocumented workers.  Many Americans still perceive labor unions as opposing protections for the undocumented workers who “steal” jobs from hard-working Americans.  But this is no longer the case. 

Increasingly, organized labor has recognized that aiding undocumented workers is in their own interest and is therefore reaching out to these workers at both the national policy level  and by providing help to exploited individuals.  The most obvious reason for this turn-around is that undocumented workers are increasingly being recruited by and becoming members of these labor unions, particularly in the service and construction industries. 

As undocumented workers are brought into the union’s ranks, immigration policy and its enforcement becomes intricately linked to the status and protection of labor rights.  For instance, in its unfortunate Hoffman Plastic (2002) decision, the Supreme Court held that the National Labor Relations Board could not award backpay to an alien employee who was illegally terminated for supporting a union-organizing campaign.  The Court reasoned that doing so would run counter to the nation’s immigration policy of denying employment to undocumented workers.  As the dissenting Justices correctly point out, this decision effectively removes the one deterrent (backpay) that keeps employers from illegally terminating workers who exercise their labor rights.  Far from forcing parties to comply with immigration law, this decision will encourage employers to hire more undocumented workers, because they can illegally fire these workers without any meaningful consequences.  This hollowing out of workers’ “legally-protected right” to organize will make it extremely difficult for unions to convince undocumented workers that they should engage in “protected” organizing activities.

The no-match letter rule proposed by the Bush Administration would have a similar chilling effect on organizing undocumented workers.  John Sweeney, President of the AFL-CIO, made this point when the rule was proposed:  “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 workers 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.”

Therefore, last week’s legal victory was not only one for undocumented workers, but yes, a big one for organized labor as well.