Office of Special Counsel's
Antidiscrimination Guidance
for Employers Following the
DHS Safe-Harbor Procedures
The Department of Homeland
Security’s (DHS's) Safe-Harbor Procedures for Employers Who Receive a No-Match
Letter (“no-match rule”), as published in August 2007 and as modified by a Proposed
Supplemental Rule that was announced by DHS on March 21, 2008, offers employers
who receive no-match letters from the Social Security Administration (SSA) a
safe-harbor in a related immigration enforcement action if those employers
follow the series of steps set forth in the no-match rule to ensure that the
information provided by affected employees to confirm their work eligibility is
genuine. The no-match rule provides that
an employer may terminate an employee whose work eligibility could not be
confirmed after the employer has followed the procedures that the rule sets
forth.
Employers in the United
States have inquired and sought information regarding any anti-discrimination
implications for employers who follow these safe harbor procedures;
specifically, when the SSA notifies the employer that certain employees’ names
and Social Security numbers do not match in the SSA’s records, the employer
follows the procedures in DHS’s no-match rule, the employees cannot resolve the
mismatch or successfully complete a new employment eligibility verification,
and the employer dismisses those employees.
The Department of Justice (the Department) issues the instant notice to clarify
when the Department, through the Civil Rights Division’s Office of Special
Counsel for Immigration-Related Unfair Employment Practices (OSC), may find reasonable
cause to believe that employers following the safe-harbor procedures have
engaged in unlawful discrimination in violation of the antidiscrimination
provisions of the Immigration and Nationality Act, Section 274B, which are
codified in 8 U.S.C. § 1324b.
OSC enforces the
antidiscrimination provisions found at 8 U.S.C. § 1324b (corresponding
regulations appear in 28 C.F.R. Parts 44, 68).
Section 1324b protects
OSC is required to
investigate charges of discrimination alleging a violation of section 1324b and
determine whether or not there is reasonable cause to believe that the charge
is true. OSC may, on its own initiative,
also conduct investigations respecting unfair immigration-related employment practices. It is OSC’s longstanding practice to examine
the totality of relevant circumstances in determining whether there is
reasonable cause to believe that an employer has engaged in unlawful
discrimination. Based upon the outcome
of its investigation, OSC may bring a complaint before an administrative law
judge seeking remedial relief for victims, injunctive relief to prevent future
violations, and/or civil penalties.
Section 1324b also provides a private right of action.
As a threshold matter, if OSC
receives an allegation of discrimination by an employer in applying the safe
harbor procedures, it will first ascertain whether the alleged victim is an
authorized worker who is protected from discrimination under section 1324b. If it concludes that the alleged victim is
protected, OSC will initiate an investigation to determine whether there is
reasonable cause to believe that the employer has engaged in unlawful
discrimination.
An employer that receives an
SSA no-match letter and terminates employees without attempting to resolve the
mismatches, or who treats employees differently or otherwise acts with the
purpose or intent to discriminate based upon national origin or other
prohibited characteristics, may be found by OSC to have engaged in unlawful
discrimination. However, if an employer
follows all of the safe harbor procedures outlined in DHS’s no-match rule but
cannot determine that an employee is authorized to work in the United States,
and therefore terminates that employee, and if that employer applied the same
procedures to all employees referenced in the no-match letter(s) uniformly and
without the purpose or intent to discriminate on the basis of actual or
perceived citizenship status or national origin, then OSC will not find
reasonable cause to believe that the employer has violated section 1324b’s
anti-discrimination provision, and that employer will not be subject to suit by
the United States under that provision.
Employers and employees who desire additional guidance regarding their specific circumstances are encouraged to further explore OSC’s website. Employer and employees also may call OSC for guidance. Employers may call 1-800-255-8155, or 1-800-237-2515 for the hearing impaired. The numbers for employees are 1-800-255-7688 or (202) 616-5525, and 1-800-237-2515 for the hearing impaired. Finally, OSC has an extensive public education program to inform employers and employees regarding their rights and duties under section 1324b. Speakers may be available nationwide for groups of 50 or more attendees for public affairs events, conferences, class seminars, and workshops. To request a speaker, please call OSC's Public Affairs staff at (202) 616-5594 or fax your request to (202) 616-5509.