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Security law overburdens employers Posted on Mon, Sep. 03, 2007

Special to The Miami Herald

A new rule issued by the Department of Homeland Security last month will have a dramatic effect on Florida employers and employees.

Under the guise of enhanced border security, DHS is mandating new procedures for employers for how they must respond to mismatch letters issued by the Social Security Administration. Essentially, the federal government is shifting its law enforcement responsibilities concerning immigration to employers.

These mismatch letters have in the past not been viewed as a basis for suspecting that the workers listed in the letter lack authorization to work in the United States. This has changed with the new DHS regulation.

Under the new DHS enforcement policy, there will be a presumption that employees listed in a SSA mismatch letter are not legally authorized to work. Employers must check their records promptly upon receipt of a mismatch letter to determine if it is a result of a clerical error by the employer. If there is such an error, the employer should correct its records, inform the agencies of the error and verify that the corrected information matches the SSA records. Employers have 30 days to respond to these discrepancies.


If there is not a clerical error, the employer must request a clarification from the employee. If the employee cannot clarify the records, the employer must inform the employee of the need to go to the local SSA office to correct the problem. If the employee does present corrected information or new I-9 documentation, the employer must confirm the authenticity of this information by contacting the SSA.

Employers must also be careful not to go overboard or they may face prosecution under civil rights or immigration laws prohibiting discrimination. Employers also can be liable for wrongful termination if it is found that the discharged employee was in fact authorized to work in the United States.

A significant burden is being placed upon employers to follow the new DHS procedures. There are also huge practical implications as well.

Reportedly, the SSA delayed sending out the mismatch letters based upon the 2006 W-2 information. It is expected that these letters will issue in a staggered process over the next several months. This may have dramatic effects this winter on agricultural harvesting operations, the hotel and motel industry and the retail industry looking to increase hiring during the holidays. There could be up to 12 million current wage earners taken out of the consumer-based economy with an attendant loss of gross tax revenues as well. If several million individuals who are currently employed suddenly become unemployed, they will be driven to the underground economy. We can expect an increased reliance on public assistance and healthcare, which could put further strain on the taxpayers.

Increasing interior enforcement and strengthening the employment eligibility and verification system without a legalization program for current unauthorized workers and without a guest worker program to address our future workforce needs will be detrimental to the economy and the stability of an essential workforce.


Forcing workers into the black-market economy where they do not pay taxes is neither sound economic policy nor in the country's security interests. Employers would be well advised to urge their congressional representatives to immediately put a legislative hold on the DHS rule until comprehensive immigration reform can be enacted.

Charles S. Caulkins is managing partner of the Fort Lauderdale office of Fisher & Phillips, LLP, a national labor and employment law firm that exclusively represents employers.

August 2007

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