DHS to ask court to lift no-match rule injunction
DHS to ask court to lift no-match rule injunction
WASHINGTON -- According to Department of Homeland Security Secretary Michael Chertoff, its Oct. 23 revisions to the final no-match rule will persuade the courts to lift an injunction and allow the government to begin enforcing the controversial law.
But Western Growers Association says not so fast.
The government issued yet another version of the so-called no-match rule earlier this month that requires employers to correct errors that occur when an employee's name and Social Security number do not agree with government records.
The U.S. District Court for the Northern District of California blocked the Bush administration from enforcing the rule last year after the U.S. Chamber of Commerce and other groups challenged it.
"The additional information in this supplemental rule addresses the specific items raised by the court, and we expect to be able to quickly implement it," said Mr. Chertoff, who signaled that the department would be asking the court to lift the injunction.
But Jason Resnick, WGA's assistant general counsel, said that the latest economic analysis "will not be sufficient to satisfy the judge in this case." He added that the rule is largely intact and that the government made few changes. "I don't believe DHS will prevail."
Implementing the no-match rule could be a disaster to agriculture, which relies on undocumented workers for at least 70 percent of its workforce, said Mr. Resnick. Employers would have up to 90 days to terminate workers or face prosecution if they receive a no-match letter, aggravating an already strained labor climate.
"The bottom line is this: At a time of unprecedented economic uncertainty for all of us except those with the longest memories, this rule -- if allowed to proceed -- would have devastating economic consequences for the stability and survival of labor-intensive agriculture in America," said Craig Regelbrugge, vice president of government relations and research for the American Nursery & Landscape Association.
The U.S. Chamber of Commerce estimated that businesses would have to spend between $1 billion and $1.6 billion to pick up the cost of implementing the new program each year. Some 37,000 to 165,000 Americans and other authorized workers would end up unemployable because of the no-match rule, and it would raise new concerns about privacy and security of personal data stored in government databases, the chamber said.
At an Oct. 23 press conference here, Secretary Chertoff warned employers against ignoring the no-match letters. "If you take the letter and you throw it in the wastebasket because you do not want to be bothered or you do not want to get the bad news, then you are taking a risk," he said.
The government is expected to issue another rule soon that would require government contractors to comply with E-Verify, an electronic verification system. More than 900 employers have signed up to participate in the voluntary E-Verify program, and Congress just reauthorized funding for the program until March 2009. But produce businesses that sell to the school lunch program and other government programs would have to comply with E-Verify when the rule is finalized.
Mr. Resnick said that the E-Verify system is built on an error-ridden database, which puts all workers at risk.
Western Growers Association is hopeful that immigration reform will be debated in Congress next year no matter who wins the White House because both presidential candidates have demonstrated a commitment to supporting comprehensive reform.
Monte Lake, partner with the Washington, DC, law firm Siff & Lake LLP, said that produce businesses should not wait for legislative relief but should begin thinking about their hiring practices today in case the no-match rule goes into effect soon. The court will most likely set a briefing schedule at the Nov. 21 meeting, and that could drag out the process until February or March, said Mr. Lake.
Assuming the litigation fails and the no-match rule is implemented in the spring, companies would have 90 days to terminate hires at a key harvesting time for some regions, said Mr. Lake. Produce businesses also need to develop a computer flagging system in case a seasonal worker is flagged one year and then is rehired the next year.
"It's going to result in a huge recycling of the workforce," he said, adding that it will force agricultural industries to absorb steep training and dislocation costs. "It's an explosive issue," he said.
But Western Growers Association says not so fast.
The government issued yet another version of the so-called no-match rule earlier this month that requires employers to correct errors that occur when an employee's name and Social Security number do not agree with government records.
The U.S. District Court for the Northern District of California blocked the Bush administration from enforcing the rule last year after the U.S. Chamber of Commerce and other groups challenged it.
"The additional information in this supplemental rule addresses the specific items raised by the court, and we expect to be able to quickly implement it," said Mr. Chertoff, who signaled that the department would be asking the court to lift the injunction.
But Jason Resnick, WGA's assistant general counsel, said that the latest economic analysis "will not be sufficient to satisfy the judge in this case." He added that the rule is largely intact and that the government made few changes. "I don't believe DHS will prevail."
Implementing the no-match rule could be a disaster to agriculture, which relies on undocumented workers for at least 70 percent of its workforce, said Mr. Resnick. Employers would have up to 90 days to terminate workers or face prosecution if they receive a no-match letter, aggravating an already strained labor climate.
"The bottom line is this: At a time of unprecedented economic uncertainty for all of us except those with the longest memories, this rule -- if allowed to proceed -- would have devastating economic consequences for the stability and survival of labor-intensive agriculture in America," said Craig Regelbrugge, vice president of government relations and research for the American Nursery & Landscape Association.
The U.S. Chamber of Commerce estimated that businesses would have to spend between $1 billion and $1.6 billion to pick up the cost of implementing the new program each year. Some 37,000 to 165,000 Americans and other authorized workers would end up unemployable because of the no-match rule, and it would raise new concerns about privacy and security of personal data stored in government databases, the chamber said.
At an Oct. 23 press conference here, Secretary Chertoff warned employers against ignoring the no-match letters. "If you take the letter and you throw it in the wastebasket because you do not want to be bothered or you do not want to get the bad news, then you are taking a risk," he said.
The government is expected to issue another rule soon that would require government contractors to comply with E-Verify, an electronic verification system. More than 900 employers have signed up to participate in the voluntary E-Verify program, and Congress just reauthorized funding for the program until March 2009. But produce businesses that sell to the school lunch program and other government programs would have to comply with E-Verify when the rule is finalized.
Mr. Resnick said that the E-Verify system is built on an error-ridden database, which puts all workers at risk.
Western Growers Association is hopeful that immigration reform will be debated in Congress next year no matter who wins the White House because both presidential candidates have demonstrated a commitment to supporting comprehensive reform.
Monte Lake, partner with the Washington, DC, law firm Siff & Lake LLP, said that produce businesses should not wait for legislative relief but should begin thinking about their hiring practices today in case the no-match rule goes into effect soon. The court will most likely set a briefing schedule at the Nov. 21 meeting, and that could drag out the process until February or March, said Mr. Lake.
Assuming the litigation fails and the no-match rule is implemented in the spring, companies would have 90 days to terminate hires at a key harvesting time for some regions, said Mr. Lake. Produce businesses also need to develop a computer flagging system in case a seasonal worker is flagged one year and then is rehired the next year.
"It's going to result in a huge recycling of the workforce," he said, adding that it will force agricultural industries to absorb steep training and dislocation costs. "It's an explosive issue," he said.
