No-Match Letter Does Not Provide Constructive Knowledge of Immigration Violations

On August 15, 2008, the United States Court of Appeals for the Ninth Circuit issued an opinion finding that a no-match letter does not provide Constructive knowledge of Immigration Violations.

The case arose from the response by Aramark Facility Services (“Aramark”) to a no-match letter from the Social Security Administration (“SSA”), which indicated that Aramark had reported information for 48 of its employees that did not match the SSA’s database. Aramark suspected immigration violations and demanded that the suspected employees correct the mismatch within three days by proving that they had begun the process for applying for a new card. Approximately a week later, Aramark fired 33 of the 48 employees. The Service Employees International Union (“SEIU”) filed a grievance on behalf of the fired workers, contending that the terminations where without just cause and in violation of the collective bargaining agreement between Aramark and SEIU. An arbitrator ruled for SEIU and awarded the terminated employees reinstatement and back-pay, finding that there was no convincing information that the workers were undocumented. Thereafter, the District Court vacated the award on the ground that it violated public policy, and SEIU timely appealed.

In the aforementioned case, the main public policy to which Aramark points is expressed in the Immigration Reform and Control Act of 1986 (“IRCA”). Specifically, Aramark cites the laws that (1) employers are subject to civil and criminal liability if they employ undocumented workers “knowing” of their undocumented status, and (2) the term “knowing” includes constructive knowledge. As defined in relevant regulations, “constructive knowledge is knowledge that may fairly be inferred through notice of certain facts and circumstances that would lead a person, through the exercise of reasonable care, to know about a certain condition. Aramark argued that two facts gave it constructive notice of immigration violations: (1) the no-match letters themselves, and (2) the employees responses (or lack thereof).

According to the SSA, the main purpose of the no-match letters is not immigration-related, but rather is simply to indicate to workers that their earnings are not being properly credited. Additionally, SSN mismatches could generate a no-match letter for many reasons, including typographical errors, name changes, compound last names, and inaccurate or incomplete employer records. An SSN discrepancy does not automatically mean that an employee is undocumented or lacks proper work authorization. In fact, the SSA tells employers that the information it provides them “does not make any statement about…immigration status” and “is not a basis, in and of itself, to take any adverse action against the employee.” Employers do not face any penalty for ignoring a no-match letter.

Aramark also contends that it gave its employees ample time to respond to the no-match letter; however, the District Court found otherwise. Aramark’s return policy was extremely demanding in that an employee had three days to respond from the post-mark of the letter. Essentially, this gave the employees two days in order to gather documentation, possibly consult an attorney, and proceed to an SSA office during business hours, all while still continuing to work for Aramark.

In conclusion, Aramark had produced no evidence concerning the fired employees’ actual employment status other than that they were named in the no-match letters and did not quickly respond to the request for further verification of their social security status. This evidence does not illustrate that any of the workers were actually unauthorized to work, because a social security card is only ONE way to prove work authorization. Therefore, Aramark did not possess constructive knowledge/notice of immigration violations, and the SEIC on behalf of the fired employees shall be entitled to the arbitration award, as it is not against public policy when no evidence of immigration violations were found. Employers must look at the totality of the circumstances to determine whether they have constructive knowledge of suspected immigration violations.