U.S. Circuit Court Rules Employers Cannot Terminate Employers Solely on No-Match Letters

In an interpretation of the federal Immigration Reform and Control Act (IRCA), the U.S. Circuit Court of Appeals recently ruled that employers cannot terminate an employee solely on the basis of unresolved, no-match letters from the Social Security Administration. The ruling also raises legal questions for the U.S. Department of Homeland Security's recent rulemakings that interpret the IRCA as saying employers must terminate the employment of anyone who has unresolved documentation mismatches.

The case arose from a grievance brought by the Service Employees International Union on behalf of 33 employees in Los Angels who were terminated because they could not adequately resolve no-match letters. But the court stated that since there could be multiple causes for a mismatch, such as data entry errors and name changes, a mismatch alone is not proof that an employee is not authorized to work in the United States.

The ruling may also mean that contract glazing companies, depending on where they are located, will need to re-evaluate their termination policies. Illinois, for example, considers all employees as "at will employees" and since field personnel are hired through a union employers are not required to give any explanation for a termination.

"This ruling is just another issue for owners to contend with that creates additional risks and liabilities," says Robyn McGinnis, president and chief executive officer of Sierra Glass & Mirror in Las Vegas. "If you employ someone who does not provide proper legal documentation ensuring the income and social security taxes are being paid to the government on their behalf, you are breaking the law, yet if you terminate someone for not providing proper documentation to prove this, you are opening yourself up to a cause of action against you by the individual who failed to provide this information. It is a contradiction in every way and once again puts owners at additional risk in an already high-risk industry."

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