August 2007 E-Alert

Important Federal, Missouri and Illinois
Employment Law Developments

Federal Law Development – Don’t Get “ICED”

Pay Special Attention to Social Security Mismatch Letters

On August 16, 2007, the Division of the Department of Homeland Security (DHS), Immigration and Customs Enforcement, also known by the acronym “ICE”, issued guidance in the form of final rules regarding employers’ suggested actions when receiving mismatch letters.

What is a mismatch letter?

A mismatch letter is generated when an employee’s name and corresponding Social Security number provided on the Form W-2 does not match the Social Security Administration (SSA) records. Out of the approximately 250 million wage reports filed with the SSA each year, as many as four percent, or approximately 10 million, belong to employees whose names and corresponding Social Security numbers do not match the SSA’s records. There are many reasons why a mismatch between employer and the SSA’s records may occur, including simple and easily explained reasons such as transcription errors and name changes due to marriages that are not reported to SSA.

Don’t panic!

In their continued effort to heighten enforcement of immigration rules and regulations, DHS issued “safe harbor” procedures for employers to follow after receiving a mismatch letter from the SSA. DHS’s “safe harbor” rules provide companies with a calculated and methodical approach to address a mismatch letter. Overreacting can lead to increased problems. For example, taking an adverse employment action against an individual without following DHS guidance may result in an employment discrimination lawsuit. Accordingly, it is best for employers to develop a plan of action in advance to address SSA mismatch letters.

What steps should an employer take when receiving a mismatch letter?

Based on the safe harbor rules developed by DHS, we recommend that all employers prepare and issue an employment policy incorporating the suggestions of DHS. The DHS’ guidance provides that within 30 days of receipt of a mismatch letter, an employer should ensure its records are accurate and check for typographical or clerical errors, correct any discovered errors and notify the SSA or DHS of any such errors. If a clerical error cannot be identified, the employer should confront the employee with the issue. If talking to the employee does not resolve the matter, the employee should be directed to contact the SSA or DHS to resolve the discrepancy.

What if the employee does not resolve the matter?

The DHS guidance provides that an employee should be given 90 days to provide evidence that the matter has been resolved with the appropriate agency. If it is not resolved within 90 days, the employer should give the employee 3 days to file a new Form I-9. Employees unable to produce documents required to complete the Form I-9 should be terminated by the employer.

What are the consequences for refusing to terminate an employee that cannot comply?

While the new rules are not mandatory, and simply provide a “safe harbor” for employers, it is likely ICE will take the position that an employer will have actual, or at a minimum constructive knowledge, that employer is employing an illegal alien where that employer fails to comply with the guidance provided by the DHS.

What can an employer do to avoid liability?

The Lowenbaum Partnership encourages employers to review and revise their current policies to reflect the new DHS rules. This is especially true for an employer that maintains more than one location or has more than one supervisor overseeing its I-9 compliance. If you have questions in this regard, please contact an attorney of The Lowenbaum Partnership.

Missouri Development – Criminal Proceedings and Employee Leave Requests

A new Missouri law addresses an employee’s right to take leave to attend certain criminal proceedings. On July 12, 2007, the Governor signed a bill that limits an employer’s ability to discharge, discipline, or require an employee to use vacation time, personal time, or sick leave when testifying in, attending, or participating in the preparations of criminal proceedings. Importantly, the law only covers an employee who is a witness, victim or member of a victim’s immediate family. While most employers hope their employees never have to request leave under this provision, Missouri employers need to take this new law into account if and when an employee requests time off work under the above circumstances.

Illinois Development – Venue Options for Unlawful Discrimination Plaintiffs

A recent legislative development may give employees more options when alleging unlawful discrimination in the State of Illinois. The proposed legislation would allow petitioners to transfer complaints from the Illinois Human Rights Commission to Illinois Circuit Courts, such as Madison County and St. Clair Circuit Courts. As you know, these courts have been particularly friendly to plaintiffs. The Lowenbaum Partnership recommends that Illinois employers contact their local legislators to address any concerns with this proposed legislation.

This E-Alert is intended as in informal summary of certain recent legislation, cases, rulings and other developments. This E-Alert does not constitute legal advice or a legal opinion and is not an adequate substitute for advice of counsel. This E-Alert is not intended to nor does it create an attorney-client relationship. The choice of a lawyer is an important decision and should not be based solely upon advertisements. If this E-Alert is deemed to be an advertisement please disregard this solicitation if you have already engaged a lawyer in connection with the legal matter referred to in this solicitation. You may wish to consult your lawyer or another lawyer instead of us. The exact nature of your legal situation will depend on many facts not known to us at this time. You should understand that the advice and information in this solicitation is general and that your own situation may vary. This statement is required by rule of the Supreme Court of Missouri.