Labor & Employment Law — 10/7/09

DHS issues final rule rescinding no-match regulation

The Department of Homeland Security (DHS) has rescinded its controversial “no-match” regulation, according to a final rule published in the October 7, 2009, Federal Register (see http://edocket.access.gpo.gov/2009/pdf/E9-24200.pdf ). After careful review, DHS has decided to focus its worksite enforcement efforts on “increased compliance through improved employment verification, via participation in E-Verify, ICE’s Mutual Agreement Between Government and Employers (IMAGE) and other programs.” As it stands, implementation of the no-match rule, which was originally issued in 2007, has been enjoined by Judge Charles Breyer of the Northern District of California since October 2007 (AFL-CIO v Chertoff, NDCal, No 3:07-cv-04472-CRB).

DHS’s no-match regulation, which would have amended 8 CFR Part 274a (Control of Employment of Aliens), described the legal obligations of an employer when receiving a no-match letter from the Social Security Administration (SSA) or a notice of suspect documents letter from US Immigration and Customs Enforcement, DHS’s largest investigative arm. As part of the rule, the SSA would have been required to include, in the mailing of no-match letters, an insert letter from DHS explaining how employers are required to resolve discrepancies. These steps or time frames, called safe harbor procedures, were to be followed by employers to avoid a finding that they have constructive knowledge that the employee referred to in the letter is an alien not authorized to work in the United States. Employers with knowledge that their employees are not authorized to work in the US are liable for both civil and criminal penalties under the Immigration Reform and Control Act of 1986.

DHS issued its proposed rule rescinding the no-match regulation on August 19 and is adopting the rule to rescind as proposed without change. This final rule will take effect November 6.

NetNews

Free Email Newsletter

In Focus

SEC Official Reviews Compensation Disclosure Expectations

SEC Deputy Director Shelley Parratt urged companies not to wait for staff comments to improve their compensation discussion and analysis ("CD&A"). After three years of comments on how to improve their disclosure, Parratt said companies now should be prepared to amend their filings if they do not materially comply with the rules.