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No Match Letter does not give right to fire.

Aramark employs approximately 170,000 people in the United States. In 2003, Aramark received notice from the Social Security Administration (SSA) that 3,300 of its employees did not provide social security numbers that matched those in the SSA database. These type of notices are typically referred to as “no match letters.” Forty eight (48) of those employees worked at the Staples’ Center sports arena in Los Angeles.

On April 15 and 16 of 2003, Aramark sent a letter to the 48 Staples Center Aramark employees advising them to obtain either a new social security card or to provide verification that an application for a new social security card had been submitted to the SSA. These employees were given 3 days from the date of the letter to accomplish this task. Practically, if one takes into account that it would take one day for the letter to be mailed, the employees had two days or less to comply. Fifteen (15) employees were able to timely get the information requested. Thirty-three (33) employees did not and were fired.

The fired employees took this matter to a union arbitration and won. Aramark appealed and sought intervention by a federal court. The trial court found in Aramark’s favor and the union appealed to the 9th Circuit Court of Appeals.

Aramark defended its actions by arguing that the no match letters provided constructive knowledge that the 33 fired employees were illegal workers. Aramark contended it had to fire the employees since, under the Immigration Reform and Control Act of 1986 (IRCA), it would be subject to civil and criminal penalties if had actual or constructive knowledge that the employees had undocumented status. According to Aramark, the receipt of a no-match letter constituted constructive knowledge of the worker’s illegal status. As a result, Aramark argued the terminations were justified.

The 9th Circuit Court of Appeals disagreed. It felt the no match letters, by themselves, did not provide constructive notice of undocumented status. In so holding, the court observed that the SSA’s stated purpose in mailing no match letters is to alert individuals that social security contributions are not being properly credited due to mismatched records. The SSA also advises employers that they are not to infer that a no match letter is indicative of undocumented status nor are employers to take adverse action merely due to the receipt of a no match letter. Based on this, the court felt that a no match letter was not the type of positive information from the government that provides constructive knowledge to an employer.

From the opinion, it appears that the court was most concerned by the relatively short period of time within which employees had to act (3 days from date of letter). While Aramark permitted the terminated employees to reapply for employment once they obtained proper documentation, the court felt it was unfair to give employees less than 3 days to correct a problem that could take as long as 90 days to resolve. The court expressed concern that, under similar circumstances, an employer could use the receipt of a no match letter to justify a discriminatory termination under the pretext of compliance with IRCA. To bolster its argument that the employees were not give sufficient time to correct the no match, the could observed that under regulations adopted after this case was filed, employers are provided a safe harbor ( a window of immunity from prosecution, under IRCA, based on constructive knowledge) if employees, are given 90 days, after the employer receives a no match letter, to provide necessary verification. Under these regulations if a no match cannot be corrected within that time frame, the employer can qualify for a safe harbor if it submits an I-9 that relies on information other than a social security number to verify the employee’s status.

The Bottom Line:

It always comes down to fairness and perceived fairness. While Aramark may have felt its actions were justified by a legitimate concern that criminal and civil penalities for IRCA violations could be imposed, the actions taken were too drastic and did not recognize institutional barriers that could make impossible for some employees to resolve issues created by the no match letters. The actions taken by this employer failed to be fair and failed to create the appearance of fairness.

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