NATIONAL IMMIGRATION LAW CENTER ORGANIZING IMMIGRANT WORKERS

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					                                    NATIONAL IMMIGRATION LAW CENTER
                                       ORGANIZING IMMIGRANT WORKERS



                                                                                                                  April 2004




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                                NATIONAL IMMIGRATION LAW CENTER
                                Los Angeles Headquarters      Washington, DC                Oakland, CA
                                3435 Wilshire Blvd            1101 14th Street, NW          405 14th Street, NW
                                Suite 2850                    Suite 410                     Suite 1400
                 National       Los Angeles, CA 90010         Washington, DC 20005          Oakland, CA 94612
              Immigration       213 639-3900                  202 216-0261                  510 663-8282
               Law Center       213 639-3911 fax              202 216-0266 fax              510 663-2028
                 www.nilc.org


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                         NATIONAL IMMIGRATION LAW CENTER

              Basic Media Guide for Immigrant Workers
                                                                                          April 2004

When advocating for legal or policy changes that can help improve the lives of immigrants and
the communities we live in, using the media can be a very effective tool. By talking to the media:
you can help put a human face on the problems immigrants face, you get to tell our own story and
in your own words, highlight the contributions immigrants make to the U.S. economy and society
as a whole, and shine a light on the exploitation immigrants suffer at the hands of employers or
the adverse impact of bad policies.

However, it is important to protect yourself when talking to the media. Media coverage can be
risky for undocumented immigrants, and there are even risks for non-U.S. citizens who have legal
status. Remember that the press may want more information than you may want to give—it is
okay to follow the below guidelines and refuse to answer certain questions. These guidelines are
meant to help you protect yourself, something you can do while still getting your story and
message across to the press.


The main risks of press coverage are as follows:

    You may come to the attention of immigration authorities or others who wish you
    harm if your real name is used and you are identified as an undocumented
    immigrant. This is not a common occurrence but it has been known to happen,
    particularly to persons who live in small towns where they may be seen and
    recognized.

    You may come to the attention of immigration authorities or others who wish you
    harm if the newspaper story includes your photograph. If your photo is identified as
    that of an undocumented immigrant, even without your name, you may be
    recognized. Again, this risk is greatest in smaller areas.

    If you have legal status but are not a U.S. citizen, you may face problems in the
    future if you give information and details about your immigration case. This is
    especially true for people who are in deportation proceedings (are fighting their case
    in front of an immigration judge). Do not ever provide information to the media that
    contradicts the facts of your immigration case.


How you can protect your security while talking to the press:
If you are concerned about any of the above risks, below are some suggestions:

    Let the reporter know that you want to be anonymous, or that you want to use a
    fictitious name. Give only your first name, or a made-up first and last name. If you
    want to use a made-up name, do not use the name of anyone you know. However, it
    is important that you let the report know about this ahead of time. Be honest.
    Reporters are used to dealing with similar types of situations.
                         NATIONAL IMMIGRATION LAW CENTER
                         Los Angeles Headquarters   Washington, DC          Oakland, CA
                         3435 Wilshire Blvd         1101 14th Street, NW    405 14th Street, NW
                         Suite 2850                 Suite 410               Suite 1400
          National       Los Angeles, CA 90010      Washington, DC 20005    Oakland, CA 94612
       Immigration       213 639-3900               202 216-0261            510 663-8282
        Law Center       213 639-3911 fax           202 216-0266 fax        510 663-2028
          www.nilc.org
               NATIONAL IMMIGRATION LAW CENTER

If you are providing identifying information to the report (your full name, the city in
which you live, etc.), do not answer questions regarding your immigration status. For
example, if the reporter asks you, “Are you undocumented?” or “What is your
immigration status now?” you can reply, “I prefer not to answer that question. The
important thing is that I am a worker.”

Do not give any information about how you came to the U.S., what immigration
applications you may have filed, or whether you are or have been in immigration
detention or deportation proceedings.

It is especially important to not talk about any of the following:
     Whether you have been deported before;
     Whether you have ever used any false documents or identification (someone
     else’s passport or birth certificate, a fake social security number, a false green
     card or work permit, etc.);
     Any crimes that you pled guilty to or were convicted of.

Do not have your photograph taken by the press as part of the story. However, if
you do want a photo included, you can agree beforehand with the reporter that the
picture will be blurred or darkened or will otherwise not allow anyone to identify you
(for example, a photo of your back).

If you decide to appear on a television show, you can also agree beforehand with the
reporter to have your image be altered or put in a shadow. If you decide to speak on
a TV or radio show, remember that you can request to have your voice electronically
altered so that you won’t be recognized.




                Basic Media Guide for Immigrant Workers Page 2
                         NATIONAL IMMIGRATION LAW CENTER

                           Guía Básica De Como Hablar
                         Con Los Medios de Comunicación

                                                                                      Abril 2004

Cuando uno quiere lograr cambios legales o políticos que ayuden a mejorar las vidas de los
inmigrantes y las comunidades en que vivimos, usar los medios de comunicación puede ser una
herramienta muy efectiva. Al hablar directamente con los medios de comunicación: Usted puede
ayudar a ponerle una cara humana a los problemas que enfrentan los inmigrantes, contar su
propia historia y en su propias palabras, dar a conocer las contribuciones que hacen los
inmigrantes a la economía y sociedad de EE.UU., e informar sobre la explotación que sufren los
inmigrantes a manos de ciertos empleadores o sobre los impactos negativos que tienen las leyes
o políticas malas.

Sin embargo, es importante protegerse cuando hable con los medios de comunicación. La
cobertura de una historia por los medios de comunicación puede ser un riesgo para inmigrantes
indocumentados, y hasta hay riesgos para inmigrantes documentados pero que aun no son
ciudadanos. Recuerde que los reporteros quizás quieran más información de la que Usted quiera
dar – y Usted puede seguir las sugerencias que aparecen abajo y puede rehusar contestar
ciertas preguntas. Esta guía está diseñada para ayudarle a protegerse, algo que puede hacer
mientras cuenta su historia y le da su mensaje a los medios de comunicación.


Los riesgos principales de la cobertura por los medios de comunicación son los
siguientes:

   Usted puede atraer la atención de las autoridades migratorias o de otras personas
   que quieran hacerle daño si Usted usa su nombre verdadero y es identificada como
   indocumentada. Esto no es muy común, sin embargo sí ha ocurrido, particularmente
   a personas que viven en pequeños pueblos donde pueden ser vistas y reconocidas
   mas fácilmente.

   Usted puede atraer la atención de las autoridades migratorias o de otras personas
   que quieran hacerle daño si el periódico usa su fotografía. Si su foto es identificada
   como la de un inmigrante indocumentado, aunque no usen su nombre, Usted puede
   ser reconocido. De nuevo, este riesgo es más grande en pueblos pequeños.

   Si Usted tiene algún estatus legal status (como un permiso de trabajo) pero aun no
   es ciudadana de los EE.UU., puede enfrentar problemas en el futuro si usted da
   información y detalles sobre su caso de inmigración. Esto es especialmente verdad
   para personas que están en proceso de deportación (están peleando su caso ante
   un juez de inmigración). Nunca provee información a los medios de comunicación
   que contradiga los hechos de su caso de inmigración.




                         NATIONAL IMMIGRATION LAW CENTER
                         Los Angeles Headquarters   Washington, DC         Oakland, CA
                         3435 Wilshire Blvd         1101 14th Street, NW   405 14th Street, NW
                         Suite 2850                 Suite 410              Suite 1400
          National       Los Angeles, CA 90010      Washington, DC 20005   Oakland, CA 94612
       Immigration       213 639-3900               202 216-0261           510 663-8282
        Law Center       213 639-3911 fax           202 216-0266 fax       510 663-2028
          www.nilc.org
                 NATIONAL IMMIGRATION LAW CENTER

Como puede proteger su seguridad mientras esté hablando con los medios de
comunicación:
Si Usted está preocupada sobre cualquiera de los riesgos mencionados arriba, aquí
siguen algunas sugerencias:

   Déjele saber a la reportera que Usted quiere permanecer anónima (no usar su
   nombre), o que quiere usar un nombre ficticio. Provea solo su primer nombre, o un
   nombre y apellido inventado. Si quiere usar un nombre y apellido inventado, no use
   el nombre de alguien que Usted conozca. Sin embargo, es importante que le deje
   saber a la reportera desde el principio. Sea honesta. Los reporteros están
   acostumbrados a lidiar con situaciones similares.

   Si Usted está proveyendo información que lo identifique a la reportera (su nombre
   completo, la ciudad en la que vive, etc.), no conteste preguntas sobre su estatus de
   inmigración. Por ejemplo, si la reportera le pregunta, “¿Usted es indocumentada?” o
   “¿Cuál es su estatus de inmigración ahora?” Usted puede contestarle, “Yo prefiero
   no contestar esa pregunta. Lo importante es que soy una trabajadora.”

   No de ninguna información sobre cómo llegó o entró a los EE.UU., qué aplicaciones
   o solicitudes de inmigración ha archivado, o si está o ha estado detenido por
   inmigración o en procesos de deportación.

   Es especialmente importante que no hable sobre ninguna de las siguientes cosas:
      Si ha sido deportado anteriormente;
      Si ha usado cualquier documento falso o identificación (el pasaporte o acta de
      nacimiento de otra persona, un número de seguro social falso, una mica o
      permiso de trabajo falsa, etc.);
      Cualquier crimen al cual se ha declarado culpable o que del cual haya sido
      convicto.

   No permita que los medios de comunicación tomen su foto para la historia. Sin
   embargo, si Usted quiere que incluyan su foto, Usted puede acordar de antemano
   con la reportera de que la foto salga borrosa u obscura o manipulada de otra
   manera para que nadie pueda identificarlo (por ejemplo, una foto de su espalda).

   Si Usted decide aparecer en un programa de televisor, Usted también puede
   acordar de antemano con la reportera de que su imagen sea alterada o filmada con
   una sombra. Si Usted decide hablar en programa de radio o televisor, recuerde que
   también puede pedir que le alteren su voz electrónicamente para que no sea
   reconocida.




         Guía Básica De Como Hablar Con Los Medios de Comunicación    Page 2
                           Toolkit for Organizers:
                   Social Security Administration’s (SSA)
                            “No-Match” Letters




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                        RESOURCES FOR…


PREPARING FOR SOCIAL SECURITY “NO-MATCH” LETTERS:
  • BASIC INFORMATION BRIEF: SSA NO-MATCH LETTERS
  • EXAMPLES OF THE SSA NO-MATCH LETTERS BEING SENT IN 2004
  • WORKERS: KNOW YOUR RIGHTS (THE DO’S AND DON’TS)
  • TRABAJADORES: CONOZCA SUS DERECHOS
  • HOW TO DEAL WITH “NO-MATCH” LETTERS
  • TWO CASE STUDIES (Embassy Suites San Rafael & Chicago Hotels)
  • SAMPLE CONTRACT LANGUAGE SPECIFIC TO ISSUES RELATED TO THE
    SSA NO-MATCH

RESPONDING TO SOCIAL SECURITY “NO-MATCH” ATTACKS:
  • NELP’s TOP TEN TIPS FOR EMPLOYERS
  • SAMPLE LETTER SENT FROM UNION TO EMPLOYER RE SSA “NO-MATCH”
  • POTENTIAL LIABILITY THAT EMPLOYERS FACE
  • IRS GUIDANCE ON NO-MATCH ISSUE
  • OSC GUIDANCE ON NO-MATCH ISSUE
  • SAMPLE LETTER TO EMPLOYER FROM POLITICO
  • SAMPLE NOTICE TO EMPLOYER FROM WORKER RE: “NO-MATCH”
    LETTER
  • SAMPLE WOKER PETITION
  • SAMPLE PUBLIC FLYER
  • SAMPLE REQUEST FOR EMPLOYER INFORMATION
  • CHECKLIST FOR FILING AN NLRB CHARGE THAT INVOLVES A NO-MATCH

POLICIES FOR CHANGE:
  • SSA NO-MATCH LETTER PROGRAM: IMPLICATIONS FOR IMMIGRATION
     ENFORCEMENT & WORKERS’ RIGHTS (EXECUTIVE SUMMARY—NOV.
     2003)
  • SSA NO-MATCH TALKING POINTS
  • SAMPLE RESOLUTIONS FROM SAN FRANSCISCO
  • SAMPLE RESOLUTIONS FROM CHICAGO
                             NATIONAL IMMIGRATION LAW CENTER
                                       Basic Information Brief:
                                      SSA "NO-MATCH" LETTERS
                                                                                         February 2005


Each year, employers file a Wage and Tax Statement (Form W-2) with the Social Security
Administration (SSA) and the Internal Revenue Service (IRS) to report how much they paid their
employees throughout the year. The SSA processes about 240 million W-2s sent by about 6.5
million employers either via electronic media or on paper. These W-2s record the wages
earned by about 145 million workers annually. While the SSA is able to post about 96.4 percent
of all reported earnings to the accounts of the individuals who earned them, those earnings that
cannot be matched are posted to the SSA’s Earnings Suspense File (ESF), which by 2003 had
grown to approximately $421 billion in wages, representing about 244 million wage items that
could not be posted correctly. Workers’ wages remain in the ESF until the name/SSN can be
matched and posted to an individual's earnings record.

According to SSA officials, as of Dec. 10, 2004, the agency had sent no-match letters to
121,577 employers regarding 7,284,885 W-2s containing employee names or SSNs that do not
match SSA records. In addition, the SSA had sent approximately 9.1 million letters requesting
information regarding specific employees based on the data provided by their employers on W-2
forms. The SSA sent 7,605,907 of the letters directly to workers at their home addresses, but it
sent an additional 1,510,086 letters to workers’ employers because either the SSA had no
addresses for the workers or the addresses the agency had were incorrect.

In 2005, the SSA plans to send a similar number of no-match letters based on the same criteria
used in 2004. That is, employers will receive a letter if the W-2s they file result in a “no-match”
for at least 10 employees, or if at least one-half of one percent of the total number of names and
SSNs they report on W-2 forms for tax year 2004 do not match SSA records. The 2005 letters
will be mailed out in late February or early March.

What is an SSA no-match letter?
An SSA "no-match" letter is a letter sent by SSA when the names or SSNs listed on the
employer's W-2 forms do not agree with SSA records. SSA sends no-match letters to
employees at their home address, when it has such information, or directly to employers.
Attached to each no-match letter sent to employers is a list of employees for whom the SSA
database could not find a match. The purpose of the SSA no-match letter is notify workers and
their employers of the discrepancy, and that employees are not receiving proper credit for their
earnings, which can affect future retirement or disability benefits administered by SSA.

A large proportion of employers who receive the SSA notice employ low-wage immigrant
workers, and many no-match names are Latino, Asian, or other names frequently misspelled by
employers.

There are many reasons for computer no-matches, and the no-match letters themselves do not
prove any wrongdoing by either employer or employees. However, employer misuse of these
SSA letters has caused great harm to low-wage workers nationwide. Although workers and
                         NATIONAL IMMIGRATION LAW CENTER
                         Los Angeles Headquarters   Washington, DC         Oakland, CA
                                                          th                    th
                         3435 Wilshire Blvd         1101 14 Street, NW     405 14 Street, NW
                         Suite 2850                 Suite 410              Suite 1400
          National       Los Angeles, CA 90010      Washington, DC 20005   Oakland, CA 94612
       Immigration       213 639-3900               202 216-0261           510 663-8282
       Law Center        213 639-3911 fax           202 216-0266 fax       510 663-2028
          www.nilc.org
                      NATIONAL IMMIGRATION LAW CENTER

their union representatives usually never see the lists, employers sometimes use them to fire
employees or lay off workers temporarily without pay. The letters have also been used to
undermine or eliminate organizing activity at worksites.

In 2002, SSA had changed its policy and began sending no-match letters to any employer who
had at least one employee with information that did not match SSA’s records. SSA sent these
letters to a total of 950,000 employers throughout 2002. This created a lot of confusion and
chaos for both employers and employees who were unaware of each other’s responsibilities
and how to respond to the no-match letters. The result was that thousands of workers, mainly
low wage immigrant workers, lost their jobs, and many employers also lost hard working
employees they had trained and invested time and resource into. The sheer number of no-
match letters sent out in 2002 created a crisis in the immigrant worker community, but also
created an organizing opportunity.

Throughout 2002, many immigrant and labor rights groups across the country worked together
to educate community members about the SSA no-match letters, met with regional SSA offices
as part of diverse coalitions which included representatives of labor, immigrant rights, and
interfaith groups, as well as local elected officials and other stakeholders. Similar delegations
were very effective in meeting with employers who were trying to abuse the no-match letter,
particularly to interfere with workers’ rights to organize a union. Some groups met with their
Congressional delegations to raise concerns about the impact of the no-match letters, and
others organized locally to have their local city councils pass resolutions regarding employers’
proper responses to the SSA no-match letters. Simultaneously, national immigrant rights and
labor groups continued meeting with SSA to express concerns over the impact of the letters,
including providing input into the language SSA would use for the 2003 no-match letters.

In December 2002, SSA made a decision to change its policy regarding the no-match letter
program in 2003. Specifically, SSA realized that despite the huge number of letters it sent out,
much of the new information provided by employers still contained discrepancies, or that the
information had already been corrected. As a result, has decided to roll back the number of no-
match letters it sends out in 2003. In 2003, SSA sent no-match letters to employers who
reported a no-match for at least 10 employees, or who reported no-matches for at least ½ of
one percent of the total number of items it reports on the W-2 for tax year 2002. SSA sent out
letters to 126,250 employers, in comparison to the more than 950,000 letters sent out in 2002
that created so many problems.

In 2004, SSA revised the no-match letter to employers. This letter contains strong language
warning employers not to take adverse action against workers based on having received the
SSA letter alone, including laying off, suspending, firing, or discriminating against an individual
who appears on the list. While the letter requests that employers respond within 60 days, it
makes clear that this deadline is simply a recommendation to employers intended to assist SSA
in correcting the information, and this timeline is now at the end of the letter rather than at the
outset.

SSA will continue sending the employee letters to workers’ home addresses, but where there is
an incomplete or missing address SSA will also send that letter to the employer.




                 Basic Information Brief: SSA "No-Match" Letters Page 2
                     NATIONAL IMMIGRATION LAW CENTER

   If an employer received a no-match letter, does that mean the IRS will fine them?
       No. Although previous versions of the SSA no-match letter made reference to a
       potential fine by the Internal Revenue Service (IRS) causing a lot of panic and
       confusion among employers and workers in past years, the IRS had actually not
       imposed any such fines based on the no-match letter.

       In late 2003, the IRS has issued long-awaited guidance concerning penalties
       associated with SSA no-match letters. The guidance makes clear that simply
       receiving a no-match letter does not mean that the IRS will automatically issue a
       fine against an employer: “IRS penalty notices relating to mismatched [tax
       identification numbers] are issued based on IRS systems, not SSA systems.” An
       employer will not be fined if the reporting error is caused by “events beyond the
       filer’s control,” and the employer acts in a “responsible manner” after being
       notified of an error. The guidance specifies that, “if the employer received a
       social security number from its employee, relied on that number in good faith,
       and used it on a Form W-2,” the employer will be able to show that his reporting
       error was beyond his control. As of this date, the IRS has not issued any
       fines based on an SSA no-match letter.

       As with the 2003 letter, this year’s no-match letter does not contain the reference
       to any IRS fine. Also, at the bottom of the first page, the letter states
       “IMPORTANT: This letter does not imply that you or your employee intentionally
       gave the government wrong information about the employee’s name or Social
       Security Number. Nor does it make any statement about the employee’s
       immigration status.”


WHAT ARE THE PROBLEMS CREATED BY THE SSA NO-MATCH LETTERS?

Multiple SSA letters cause confusion for both employers and employees.
Many employers are confused by the no-match program because it is unclear what they are
required to do in response to the letters. This is exacerbated by the fact that there are various
types of letters aimed at correcting the same problem of mismatches. For example, SSA sends
letters directly to employees at their home address when it has current addresses for them.
When SSA does not have an address for an employee it also sends employers a “Request for
Employer Information,” which lists a specific individual (as opposed to a group of employees).
Thus, an employer might receive this Request for Employer Information about certain
employees, but a week later that same employer might receive a no-match letter listing a group
of employees with mismatches. The employer might then fire the worker for whom it received
an individual letter, and not take any action against employees on the broader list. Finally,
although the letters come from SSA’s Baltimore, Maryland or Wilkes-Barre, Pennsylvania
national offices, some local SSA offices apparently also send similar no-match letters to local
employers. Multiple letters are confusing to employers and increase the risk of discrimination
against certain employees.

Employers and employees confuse no-match letters with notices of immigration
violations.
When employers receive no-match letters, they and their workers often mistakenly believe they
are receiving notices of immigration violations. In many states where the no-match letters have


                 Basic Information Brief: SSA "No-Match" Letters Page 3
                     NATIONAL IMMIGRATION LAW CENTER

had negative consequences for workers, employers participate in a separate government pilot
program to verify employees' work authorization through the databases of both SSA and the
Immigration and Naturalization Service (INS). Although the pilot program and SSA no-match
letters are completely unrelated, they are sufficiently similar in appearance to add to the
confusion.

   •   In March 2003, a California employer that also participates in the Basic Pilot program
       received an SSA no-match letter listing over 500 workers. This employer was confused
       about what steps it was required to take with respect to the workers appearing on the
       no-match letter versus those new hires it has checked through the Basic Pilot program.
       This employer assumed that receipt of an SSA no-match letter was equivalent to the
       situation where the Basic Pilot cannot confirm the person was authorized to work, and
       therefore thought they should reverify the immigration status of workers appearing on
       the no-match letters.


Some employers fire workers on the list before the workers have a chance to show they
are mistakenly on the list.

SSA account errors frequently occur when employers or SSA staff incorrectly enters data.
Errors also arise when workers incorrectly report data, or when computers incorrectly read data.
Employers should provide workers with ample time to deal with the SSA bureaucracy in
straightening out errors in their accounts. SSA has advised employers that up to seven days or
more are required for the agency to correct account errors once it learns of them. Nevertheless,
some employers abuse the SSA no-match program to harass and fire vulnerable workers.

   •   In the late summer of 2003, an African-American man in Virginia was fired from his job
       because his employer received a notice from SSA regarding a discrepancy. The worker,
       who is a U.S. citizen, went to the local SSA to correct his information. Apparently, SSA
       had issued this worker a duplicate SSN, which belonged to a deceased person.
       Although he was able to correct his information with SSA, the employer refused to
       continue to employ him thinking the worker was engaging in identity theft or similar
       wrongdoing. He was fired and out of work for several months, and had to file an
       arbitration case to obtain his job back.

SSA letters are used by some employers against labor organizing campaigns to stymie
efforts to obtain better wages and improve working conditions.

   •   In the Spring of 2002, a group of immigrant workers in New York went on strike to
       protest against poor working conditions. After receiving an SSA no-match letter that the
       employer had initially ignored, the employer decided to use the no-match letter as a
       basis to reverify the immigration status of the workers involved who had filed the unfair
       labor practice charges.


SSA sends the no-match lists to employers but workers on the list do not always receive
notice.
SSA sends employers a list of Social Security numbers for individuals in their employ whose
Social Security accounts are believed to be incorrect. Unfortunately, for various reasons,



                 Basic Information Brief: SSA "No-Match" Letters Page 4
                      NATIONAL IMMIGRATION LAW CENTER

workers on the list do not always receive notice directly from SSA. Further, in cases where no-
match letters result in terminations, the individual, her lawyer, or her union representatives are
often not permitted to see the list sent to the employer. Employers often do not release the lists
of names "for privacy reasons," preventing employees from verifying the accuracy of the stated
reason for termination. The result is that workers often do not have complete information about
what is expected of them and their rights and responsibilities.

   •   In February 2003, an employer on Oregon approached a group of workers who had
       complained about violations of their minimum wage and overtime rights alleging that it
       had just received an SSA no-match letter. The employer was requiring the workers to
       reverify their immigration status, and would not provide a copy of the letter to the
       workers. Interestingly, this was before SSA began sending no-match letters to
       employers in March 2003.


The no-match letter program provides an incentive for some employers to discriminate.
A disproportionate number of names on no-match lists are “foreign sounding” names of
newcomers to the U.S., and many SSA letters are sent to employers with large numbers of
newcomers in their workforces. Employers who believe they will face business disruption due to
the letters have an incentive to prefer employees they think are less likely to receive the letters.
Those most affected will be at the low-wage skill level because they are least able to enforce
their employment rights.

   •   In July 2002, a worker in North Carolina was injured on the job. While she was on leave,
       the employer notified her that it had received an SSA no-match letter for her. She
       corrected the discrepancy, which was based on a typographical error in the W-2 that the
       employer had filed with SSA. Weeks later, while still on leave, the employer asked the
       worker to reverify that she continued to be eligible to work in the U.S. because her work
       authorization had expired. She had employment authorization based on the Temporary
       Status Program (TPS), and had already applied for the renewal but INS sent her a work
       permit with someone else’s picture. Although she was also able to straighten this
       problem out, when her doctor told her she could go back to work, the employer denied
       her a job because she had “too many immigration problems.”


WHAT CAN INDIVIDUALS WHO FEEL THEY HAVE BEEN DISCRIMINATED AGAINST DO?

Individuals, who feel they have been discriminated against based on their citizenship status,
national origin, or the employer’s refusal to accept their documents, can call the Office of the
Special Counsel for Immigration-Related Unfair Employment Practices (OSC). The OSC is a
government agency that is part of the Civil Rights Division of the U.S. Department of Justice. It
enforces the anti-discrimination provisions of the Immigration Reform and Control Act of 1986.
Workers may call the OSC's toll-free hotline at (800) 255-7688 or (800) 237-2515 (TDD for
hearing impaired). There is also an automated employer hotline at (800) 255-8155 or (800)
362-2735(TDD). The OSC can also be reached via their website at www.usdoj.gov/crt/osc.
The OSC provides assistance and written outreach materials in multiple languages.

The OSC is not part of the Department of Homeland Security (DHS) (formerly known as the
Immigration and Naturalization Service).


                  Basic Information Brief: SSA "No-Match" Letters Page 5
                               NATIONAL IMMIGRATION LAW CENTER

                            WORKERS: KNOW YOUR RIGHTS ABOUT
                           THE SOCIAL SECURITY “NO-MATCH” LETTER
                                                                                                              April 2004

Your Rights:
•   The “no-match” letter is a private matter between the SSA and each individual employee. If you are
    represented by a labor union, the employer should notify the union immediately that it has received
                                       the no-match letter, before threatening workers or requesting
                                       employees to change their paperwork in order to maintain their
                                       jobs.

                                            •      A letter from the SSA does not warrant an employer's request that
                                                   employees listed on the letter bring in their Social Security cards
                                                   or other immigration-related documentation.

                                            •      Just because employers get this letter doesn’t mean they can
                                                   discipline or fire you. In fact, the no-match letter states very
                                                   clearly that employers are not supposed to “take adverse action”
                                                   against you because you appear on the no-match letter. An
                                                   employer who does so may be violating the law.

                                  •    You should have filled out an I-9 form when hired. Upon
    completion of that form, you don’t have to answer any other questions about your immigration status
    except in very limited circumstances. An employer who inquires about your authorization to work
    simply because they got a no-match letter may be violating the law.

•   SSA is not an enforcement agency. SSA asks employers to respond to the no-match letter ONLY if
    they or their employees have corrected information to submit.

•   If you are an undocumented worker, you have many of the same rights as citizens and immigrants
    with work authorization. One of your most basic rights is the right to remain silent when an employer
    inquires about your immigration status.

DO:
        •     Ask for your shop steward or union rep. to be present with you in meeting with management.
        •     Request a copy of the original “no-match” letter from your employer.
        •     Say to the company: “Thanks, I’ll look into this”.
        •     Ask whether the “no-match” letter was received quite recently. If not, then ask when the
              employer received it and why they are distributing it now. Also, ask who is making the
              decisions about the no-match letter (for example, the supervisor, company owner, regional
              office, headquarters, etc.)

DON’T:
        •     Don’t ever tell the boss whether or not you have papers! Keep quiet! Disclosing information
              to the wrong person may carry serious legal consequences.
        •     Don’t ever resubmit different paperwork.
        •     Don’t answer if the boss asks you directly, “Are you undocumented?”
        •     Don’t panic or be afraid! This is exactly what the boss wants!

                           NATIONAL IMMIGRATION LAW CENTER
                           Los Angeles Headquarters         Washington, DC              Oakland, CA
                           3435 Wilshire Blvd               1101 14th Street, NW        405 14th Street, NW
                           Suite 2850                       Suite 410                   Suite 1400
          National         Los Angeles, CA 90010            Washington, DC 20005        Oakland, CA 94612
       Immigration         213 639-3900                     202 216-0261                510 663-8282
        Law Center         213 639-3911 fax                 202 216-0266 fax            510 663-2028
            www.nilc.org
                             NATIONAL IMMIGRATION LAW CENTER

  ¡TRABAJADORES:                  CONOZCAN SUS DERECHOS LABORALES SOBRE
                                LAS CARTAS DEL SEGURO SOCIAL!
Desde 1994, la Administración del Seguro Social (SSA) envía cada año una carta a los
trabajadores a su casa y a algunos empleadores para dejarles saber que el nombre y número
                                 de seguro social no concuerdan con los datos que tiene la
                                 agencia en sus archivos. Si el nombre y número de seguro
                                 social no concuerdan significa que el SSA no le puede dar
                                 crédito por el sueldo que Usted se ganó el año anterior. En el
                                 futuro esto puede afectar sus beneficios de seguro social
                                 cuando se retire (jubile) o por si queda incapacitada. Hay
                                 muchas razones por la cual Usted puede aparecer en una de
                                 estas cartas del SSA (matrimonio, cambio de nombre, error
                                 tipográfico con su nombre o numero, etc.). Si Usted o su
                                 empleador reciben una carta del SSA, esto no es prueba que
                                 Usted sea indocumentada, aunque muchos patrones piensan
                                 que eso quiere decir la carta y han despedido a miles de
                                 trabajadores afectando a muchas comunidades inmigrantes
                                 en el país.

   Sus derechos:

      •    La carta del Seguro Social es un asunto privado entre el SSA y cada empleado. Si
           Usted tiene un sindicato (unión) que la represente, el empleador debe de notificar a
           la unión inmediatamente de que ha recibido una carta del seguro social, antes de
           que el empleador amenace a los trabajadores o exija que traigan documentos para
           poder seguir trabajando.
      •    Una carta del Seguro Social no le da derecho al empleador de pedirle a los
           trabajadores que aparecen en la lista de la carta que traigan su tarjeta de seguro
           social u otros documentos de inmigración.
      •    Solo porque el empleador recibió esta carta del SSA no significa que pueda tomar
           alguna acción de disciplina en su contra como despedirlo. De hecho, la carta del SSA
           dice muy claramente que los empleadores no están supuestos “tomar alguna acción
           adversa” en su contra porque Usted aparece en la carta del SSA. Un empleador que
           tome estas medidas puede estar violando la ley.
      •    Cuando lo contrataron, Usted debe de haber llenado un formulario (I-9) que
           normalmente se llena con la aplicación os solicitud de trabajo y pide documentos que
           comprueben que Usted tiene derecho de trabajar. Después de haber llenado ese
           formulario (I-9), Usted no tiene que contestar otras preguntas acerca de sus estatus
           de inmigración, excepto en circunstancias muy limitadas. Un empleador que le pide
           mas información sobre su derecho a trabajar simplemente porque recibió una carta
           del SSA sobre sus datos puede estar violando la ley.
      •    El SSA no es una agencia que multa a los empleadores. El SSA le pide a los
           empleadores que contesten la carta SOLO si ellos o sus trabajadores tienen
           información que corregir.

                         NATIONAL IMMIGRATION LAW CENTER
                         Los Angeles Headquarters   Washington, DC         Oakland, CA
                         3435 Wilshire Blvd         1101 14th Street, NW   405 14th Street, NW
                         Suite 2850                 Suite 410              Suite 1400
         National        Los Angeles, CA 90010      Washington, DC 20005   Oakland, CA 94612
      Immigration        213 639-3900               202 216-0261           510 663-8282
       Law Center        213 639-3911 fax           202 216-0266 fax       510 663-2028
          www.nilc.org
                     NATIONAL IMMIGRATION LAW CENTER

      •   Si Usted es un trabajador indocumentado, Usted tiene muchos de los mismos
          derechos que los ciudadanos y otros inmigrantes con autorización de trabajo. Uno de
          los derechos más básico es el derecho a permanecer callado cuando un empleador
          le pide información adicional sobre su estatus de inmigración después de recibir una
          carta del Seguro Social.

                                  Tome los siguientes pasos:

  •   Pídale a su representante de la unión o su delegado que la acompañe a su reunión con
      el supervisor o patrón.
  •   Pídale al patrón una copia de la carta original que el recibió del SSA.
  •   Dígale al empleador: “Gracias por informarme, yo voy averiguar cual es el problema.”
      (Vea también un ejemplar de una nota que Usted le puede dar al empleador.)
  •   Pregunte si el empleador recibió la carta del SSA recientemente. Si no fue
      recientemente, pregunte por que apenas ahora están pidiendo información a los
      trabajadores. Si parece que el empleador está usando la carta para tomar represalias en
      su contra por ejercer sus derechos (está apoyando la unión, pidió que le pagaran horas
      extras, se quejo por alguna violación laboral en el trabajo, etc.), es posible que Usted
      tenga derechos adicionales y debe de comunicarse con un sindicato o agencia
      comunitaria.
  •   Pregunte también quién está tomando las decisiones acerca de estas cartas del SSA
      (por ejemplo, el supervisor, la dueña de la compañía, una oficina regional, la sede u
      oficina principal en otro estado, etc.).

NO HAGA LO SIGUIENTE:
  • No le diga al jefe si Usted tiene o no papeles. Mantenga el silencio. Compartir esta
     información con la persona equivocada puede traerle consecuencias legales muy serias.
  • No presente nuevos papeles a no ser que estos ya sean documentos validos porque su
     estatus de inmigración a cambiado y ahora tiene autorización de trabajar.
  • No conteste si su patrón le pregunta directamente “¿Usted es indocumentado?”
  • No entre en pánico, ni tenga miedo – esto es exactamente lo que el jefe quiere. Busque
     ayuda en una agencia comunitaria o con un sindicato / unión lo antes posible.




              CONOZCAN SUS DERECHOS LABORALES SOBRE LAS CARTAS DEL SEGURO SOCIAL   Page 2
                         HOW TO DEAL WITH “NO MATCH” LETTERS
            Step One: Obtain a copy of the original Social Security “no-match” letter and a list from the
            employer of those workers identified on the “no-match” letters. Contact one of the community or
            legal resources listed in this resource guide.

            Step Two: Educate the workers about the SSA “no-match” letter and their immediate response.
            Provide a “know your rights” session. Facilitate a simulation or role-play between employees and
            employer. Conduct these workshops at a local community agency, church, or union hall.

            Step Three: Provide employer with the top 10 tips for dealing with the “no-match” letter. In addition,
            provide employer with a letter from local union shop and local politico denouncing the misuse of “no-
            match” letters by employers.

            Step Four: Develop your rapid response plan. If the employer has threatened to or already has
            taken any adverse action based on the “no-match” letter, consider the following steps:

               Have workers initiate a letter campaign directed towards the employer declaring that the
               employee will handle the “no-match” letter.
               Organize a petition and the distribution of materials that bring the “no-match” issue to light.
               If the workers have already been fired, file a grievance immediately.
               Be prepared to go to arbitration. Alert the employer about potential liability suits under relevant
               federal and state laws should the employer fire the worker. HERE Local 2 and Local 100 won
               arbitration cases after employers terminated workers based on “no-match” letters. These
               decisions hold generally, that there is no “just cause” to fire an employee who fails to respond to a
               “no-match” letter. These arbitrations are most useful as a tool to convince employers not to
               terminate the workers upon receiving a no-match letter. (See Gila’s Jewel, Inc., AAA Case No.
               13-300-02261-01 (Jay Nadelbach, Feb. 19, 2002); San Francisco Cent. Travelodge Joint
               Venture, AAA Case No. 74-300-63-99 (Luella Nelson, May 3, 2000). Organizers can get copies
               of these decisions from the National Immigration Law Center or from HERE.)
               Take workplace actions to support affected workers.
               Organize a delegation of immigrant and U.S. citizen workers and community supporters (such as
               clergy, labor, politicians, and other community-based organizations) so they can explain their
               concern about the employer’s action and pressure the employer not to take any adverse actions.
               Consider organizing a public relations campaign that might help pressure the employer. The
               union should research possible illegal activities committed by the employer in the past.
               Go into a nonwork area with community delegations.
               Organize a delegation to corporate headquarters.
               Alert the employer of victories that exist in efforts to combat adverse employer actions based on
               “no-match” letters. (See for example, the Chicago and Embassy Suites case studies included in
               this toolkit.)
               Educate and engage your elected officials and representatives to write letters or take part in a
               delegation.
               Consider a resolution denouncing the “no-match” letters and their impact on workers and the
               larger community.

         Above all make sure that a well-organized net of people exist for quick and aggressive measures.
                      Employers will be less likely to harass employees if solidarity exists.




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               CASE STUDY: EMBASSY SUITES SAN RAFAEL
Embassy Suites San Rafael serves as a terrific case study of how a nonunionized but organized group of
workers was able to combat adverse action threatened by the employer based on the Social Security “no-
match” letter.
Prior to distribution of “no-match” letters:
        1) Committee leaders were in place ready to outreach to fellow workers.
        2) Worker inoculation had occurred, forewarning workers of some of the strategies that
           employers would use to intimidate them, in particular immigrant workers.
On Nov. 8, 2002, a Social Security “no-match” letter notification was sent out to the employees of
Embassy Suites San Rafael stating that there was a discrepancy in their Social Security record and that
they had 30 days to resolve this no-match problem. Employees were further notified that their failure to
correct the problem may require the Hotel to take action, up to and including termination (see
Attachment).
        3) Local 2850 obtained expert legal advice from the National Immigration Law Center on how to
           deal with the “no-match” letter.
        4) Workers were informed of what to do and what not to do in dealing with their employers.
        5) Local 2850 made sure all employees were contacted via committee leaders on the “no-
           match” letter initiative.
        6) A series of worker delegations followed, meeting with management. Employees reminded
           employers that the issue of the “no-match” letter was a matter between the employee and the
           Social Security Administration.
        7) Outreach to community organizations occurred. Members of the community wrote letters to
           management urging them to stop the intimidation.
On Dec. 11, 2002, another “no-match” notification letter was sent out to the employer declaring that their
deadline had been extended till Jan 31, 2003 (see Attachment).
        8) Workers initiated a letter campaign directed towards the employer declaring that the
            employee will handle the “no-match” discrepancy and that the Hotel need not interfere.
        9) Campaign letters (see attachment) were then presented to management via yet another
            delegation. Delegations included, but were not limited to, workers, community organizations,
            clergy, and lawyers.
        10) Local 2850 was able to attain support from union workers at other Hilton Hotels for the
            workers of San Rafael, demonstrating worker solidarity and showing that a strong plan of
            action on behalf of our union was in place.
        11) The employer was made aware of the union’s success in Chicago where the threat of
            adverse action based on the “no-match” letter had been withdrawn. Workers, in turn,
            expected the same treatment in San Rafael.
After continued delegation visits and pressure from workers, members of the community, and lawyers,
Embassy Suites sent out a letter on Jan. 8, 2003, declaring that the employee should handle the “no-
match” letter at their own discretion (see Attachment).
                 CASE STUDY: CHICAGO HOTELS LOCAL 1
                        “NO-MATCH” CAMPAIGN
Local 1 HERE represents workers at two Hilton hotels, the Palmer House and the Chicago Hilton.
Each hotel employs approximately 650 Local 1 members.

In mid-November 2002, it came to Local 1’s attention that the Palmer House Hilton had presented to
(what they believed were) approximately 30 to 40 Local 1 members with letters from the Social
Security Administration. These letters indicated that the Social Security Administration had notified
the hotel that the information contained on the employees’ W–2 forms did not match the information
in SSA’s records. These employees were instructed to fix the problem with the SSA and then report
back to the hotel human resources (HR) department. The employees were also informed that if they
did not resolve this problem within 30 days, they might be subject to discipline, up to and including
discharge.

Local 1 immediately disseminated 2 messages to the membership through its committee at the
hotel. First, the union informed workers that any employee who received a letter from the hotel must
not quit and must not reveal any information regarding their immigration status to the hotel or any
supervisor. Second, the union explained that this is not a legal problem, but a power and organizing
problem, and that an organizing strategy would have to be developed in order to fight and win.

While the committee was getting the word out, Local 1 presented a letter developed by attorney
Richard McCracken, which was sent with the signature of the organizer, to the director of HR for the
Palmer House. This letter outlined the union’s understanding of the hotel’s responsibilities resulting
from the SSA notification that the hotel had received. The HR director committed to send the letter
on to the hotel’s legal department and to advise the union on the response.

While this was in process, it came to Local 1’s attention that several employees at the Chicago
Hilton had received a similar letter, but with a 14-day deadline to respond. Local 1 decided to ramp
up its actions. On Friday, Nov. 22, 2002, delegations of 25 workers at the Chicago Hilton and 20
workers at the Palmer House simultaneously met with their respective human resource directors. At
the Palmer Hotel, the message was that Local 1 would not allow anyone to be fired and that the
union needed an answer to their letter as soon as possible. At the Chicago Hilton, the letter from
Richard McCracken’s office was delivered by the delegation, and it was also made clear that the
union would not accept any termination.

On Nov. 25, 2002, Local 1 received a letter from Sarah Norton, vice president and senior counsel for
Hilton. Notwithstanding the apparent softening of Hilton’s position in her letter, Local 1 pushed
harder with a petition drive beginning on Nov. 25, 2002, and leafleting at both hotels on Nov. 27,
2002. Delegations to the general managers of both hotels were planned for Dec. 5 and Dec. 6. At
the Palmer House, a delegation of more than 40 members met with the general manager and
delivered over 300 petition signatures. At the Chicago Hilton, some 20 members delivered over 240
petition signatures.

Coincidentally, prior to the delegation’s meeting at the Palmer House, Henry Tamarin received a
phone call from Arnie Carr, executive director of the HERLA in Chicago, requesting a meeting for the
following day on this issue with the general manger of the Palmer House.

In that meeting, the general manager made it clear that it was not in his interest to lose the
employees with “no-match” letters. Surprisingly, he indicated that even after many employees had
fixed what were simple clerical errors, there were still some 51 Local 1 members at the Palmer Hotel
alone with outstanding issues regarding their W–2 information. He committed not to take any
adverse action at this time and to contact HERE after he had the chance to contact other
management staff at Hilton Corporate.
At the Chicago Hilton, on the day of the delegation visit to the general manger, at least 2 employees
were called to the HR office to follow up on the letter they had received. Employees were advised
not to comment. HR did not make any threats and the meeting ended amicably.

After the actions at the Palmer Hotel and the Chicago Hilton, Luis Gutierrez, congressman from
Illinois, convened a meeting that included members of the community, HERE local 1, and
representatives of the Hilton Corporation, to address the Social Security “no-match” letters. After
that meeting, Hilton sent out “victory” letters that declared workers should handle the “no-match”
letters at their own discretion.
                            Sample Contract Language
                         Specific to the SSA No-Match Issue
                   [Prepared by the National Immigration Law Center]


In the event that the employer receives notice, either by correspondence or otherwise, from the
Social Security Administration (“SSA”) indicating that some of the employee names and Social
Security numbers (“SSN”) that the employer reported on the Wage and Tax Statements (Forms
W-2) for the previous tax year do not agree with SSA’s records, the employer agrees to the
following: (1) the employer will notify the union upon receipt of any such notice and will provide
a copy of the notice to all employees listed on the notice and to the union; (2) the employer will
display the following notice prominently on its premises:

       “Attention All Employees: In order to ensure that the Social Security taxes that
       are withdrawn from your wages are properly credited to your Social Security
       records, please compare the name and Social Security number that appears on
       your check stub with the name and number on your Social Security card to
       ensure that we are using the exact same information. Even the simplest
       typographical error can sometimes cause problems in the Social Security
       Administration’s records, and your earnings might not be properly credited.
       Correcting this information is very important for your future Social Security
       benefits should you become disabled or when you retire. Please contact the
       human resources office if you notice any errors. Thank you.”;

(3) the notice will also be posted in Spanish, with the following language, or if a significant
number of employees speak a language other than English or Spanish, the employer agrees to
translate the notice into that language. In Spanish the notice should read:

       “A todos los empleados, Atención: Para asegurarse de que los impuestos que se
       le sacan de su sueldo estén siendo reportados correctamente a su archivo del
       Seguro Social, por favor compare el nombre y número de Seguro Social que
       aparecen en su talón de cheque con la información que está en su tarjeta de
       Seguro Social para asegurarnos que estamos usando exactamente la misma
       información. Hay veces hasta el error tipográfico más sencillo puede causar
       problemas para los archivos del Seguro Social, y es posible que no reciba el
       crédito correcto basado en su sueldo. Corregir esta información es muy
       importante para los beneficios de Seguro Social que Usted pueda recibir en el
       futuro si es que llega a quedar incapacitado o al jubilarse del trabajo. Por favor
       comuníquese con la oficina inmediatamente sí Usted nota cualquier error.
       Gracias.”;

(4) the employer agrees that it will not take any adverse action against any employee listed on
the notice, including firing, laying off, suspending, retaliating, or discriminating against any such
employee; (5) the employer agrees that it will not require that employees listed on the notice
bring in a copy of their Social Security card for the employer’s review, complete a new I–9 form,
or provide new or additional proof of work authorization or immigration status; and (6) the
employer agrees not to contact the SSA or any other governmental agency after receiving
notice of a no-match from the SSA.
SAMPLE CONTRACT LANGUAGE REGARDING:

SELF-AUDITS

Where the Department of Homeland Security (DHS), the Bureau of Immigration and Customs
Enforcement (BICE) (formerly known as Immigration and Naturalization Service (INS)), or any
other federal, state, or local enforcement agency notifies the Company that it will be auditing the
Company’s I–9 forms or personnel records, the Company will promptly, and before the audit
takes place, notify the shop steward and the union in writing. Absent such formal notice from
DHS, BICE, or any other federal, state, or local enforcement agency, the Company agrees that
it will not conduct an audit or an any other type of inspection of its I–9 forms or personnel
records, and that it will not allow any other private or public entity to conduct such an audit or
inspection.


INQUIRY INTO IMMIGRATION STATUS

The Company agrees that it will not ask any employee, either orally or in writing, to provide
documentation of immigration status, except as required by law. If the Company determines
that such a request is required by law, the Company shall provide the employee(s) and the
union a detailed explanation for the request, in writing, citing the factual and legal basis for the
request. The union shall have two weeks to reply to the request. The employee shall not be
required to provide the requested documentation while the union and the Company attempt to
resolve a dispute under this section.
SSA “No Match” Letters: Top Ten Tips for Employers




                                                                                         October 2003

               In order to correct errors in its database and properly credit workers’ earnings, the
               Social Security Administration (SSA) sends letters to certain employers with a list
               of employees whose names or Social Security numbers (SSN’s) on their W-2
               Forms do not match SSA records. The SSA has a number of ways it attempts to
               update its database, and these letters, sometimes called “no-match” letters, are
               one mechanism the agency uses to inform workers that their earnings are not
               being properly credited.

               The no-match letters are routinely sent out starting as early as February of each
               year. They are sent to employers who submit to the SSA wage reports that, when
               compared against information reported on the W-2s, show mismatched names or
               numbers. Many employers with immigrant-dominated workforces receive these
               letters.

               There are a number of reasons why an employer’s records may not match the
               SSA’s: the individual’s name may have changed due to marriage or divorce; SSA
               or the employer may have made clerical errors in the spelling of the name or the
               number, or the employee may have provided an incomplete or incorrect name or
               number. A no-match letter from the SSA is not notice of any immigration or tax
               violation.

               What should you do if you receive a no-match letter?

                    Top Ten Tips For Employers Who Receive a No-Match Letter

               1.       Don’t panic. SSA is not charged with enforcing either federal tax laws or
               immigration laws. SSA’s goal in sending the letter is to update its massive
               database. SSA does not track the results of its no-match letter campaigns, and
               there are no reported instances of the agency “turning someone in” to either the
               IRS or the INS where there are discrepancies. In fact, SSA has no enforcement
               authority, and simply sends this educational correspondence through the employer
               for the benefit of employees.

               Moreover, the IRS recently issued a guidance making it clear that simply receiving
               a no-match letter does not mean that the IRS will issue a fine against an employer.
               All an employer has to show to avoid being fined is that it asked the employee for a
               social security number when the employee started work. It is the solicitation by the
               employer, that is important, not the response by the worker. The employer only
               has to solicit the number once, unless notified by IRS (not SSA).
2.      Post a general notice to all employees stating that in order to ensure that the Social Security
taxes that are withdrawn from their wages are properly credited to their Social Security records they should
compare the name and Social Security number that appears on their check stubs with that on their Social
Security cards to ensure that information is exactly the same. Include the same generalized notice with all
employees’ check stubs.

3.       Explain to them that the SSA is merely trying to properly credit each worker’s earnings
account. Tell the employees you’re not going to take any adverse action against them. Instead, suggest
that they check to see whether or not the name on their Social Security card or the number listed by SSA
has an error.

4.      Instruct employees to deal directly with SSA to make any necessary corrections. Employees
do not need to make corrections through the employer. The SSA can be contacted by telephone at: 1-800-
772-1213.

5.      Check your reports to the SSA to make sure there were no errors on your end. Sometimes
employer wage reports have typographical mistakes. Reviewing the information provided to you on
employee W-4 Forms is a quick way to check for these errors. Inform SSA of any discrepancies you may
have inadvertently caused.

6.      Suggest to your employees that they seek assistance from a trusted community organization if
they need it. Or, better yet, have advocates knowledgeable about no-match letters and immigrants’ rights
come provide a “know-your-rights” session for your employees to alleviate their concerns.

7.         DO NOT fire, suspend, intimidate, or threaten any employee whose name is on the no-match
list with termination or any other adverse action. If you do, you may be violating federal and state laws
prohibiting discrimination. The SSA letter itself states, “This letter does not imply that you or your employee
intentionally provided incorrect information about the employee’s name or SSN. It is not a basis, in and of
itself, for you to take any adverse action against the employee. Any employer that uses the information in
this letter as a pretext for taking adverse action against an employee may violate state or federal law . . .”

8.      DO NOT ask employees on the no-match list to bring in their Social Security card or other
immigration-related documents. Immigration law requires employers to check new hires to ensure that
they have work authorization, and to fill out an INS Form I-9. Employees may show employers any
document listed on the INS I-9 form to comply with this requirement. Once this is done, employers are not
permitted to re-check an employee’s immigration documents, as this can constitute unlawful discrimination.

9.       DO NOT assume that workers on the no-match list are undocumented or have provided
false information. There are many reasons why the employee’s name or number might not match the
SSA database records. The SSA itself states in its no-match letter that the reasons include typographical
errors, incomplete or blank names or SSN’s, or name changes. You are not considered “on notice” that
any of your employees are undocumented if you receive a no-match letter because immigration laws only
prohibit employers from knowingly hiring undocumented workers.

10.     Promptly report any errors to SSA that you or your employees find to ensure that the personal
earnings records of your employees are accurately reported and credited. Some no-match letters give
employers and employees 60 days to respond, but SSA has no authority to enforce this deadline.
                  SAMPLE LETTER SENT FROM UNION TO EMPLOYER

                                   Re:     Social Security “No-Match” letters

         Dear Employer:

                 It is possible that you will receive a letter from the Social Security Administration (SSA)
         informing you that your W-2 form contained incorrect names or Social Security numbers for one or
         more of your employees. I am writing to advise you about what this letter means and what you
         should, and should not, do.

                  The SSA sends these “no match” letters to employers so that employers may advise
         employees of the error. Thus, you should inform employees whose Social Security number appears
         on the list provided by the SSA. I also request that you provide this information to Local 2850.

                The employee may correct the error, but is not required by law to do so. If your employee
         chooses not to correct the error, the SSA will retain the taxes you report for that employee in a
         “suspense fund” until he or she contacts the SSA. See 20 C.F.R. § 422.120(a).

                 You are not required to provide the SSA with corrected names or numbers. You will note
         that the letter you receive from the SSA only requests that you provide this assistance: “It would
         greatly assist us if you could respond within 60 days with the information that you are able to correct
         so that SSA can maintain an accurate earnings record for each employee.” The SSA does not state
         that you must do so.

                 Moreover, you are not prohibited from continuing to employ individuals with mis-matched
         Social Security numbers. The SSA’s clear position is that an employer should not take any adverse
         action against an employee because of a “no match” letter. In the letter from the SSA, the SSA
         advises that “[t]his letter does not imply that you or your employee intentionally provided incorrect
         information about the employee’s name or SSN. It is not a basis, in and of itself, for you to take any
         adverse action against the employee, such as laying off, suspending, firing or discriminating against
         an individual who appears on the list.”

                  A common misconception is that a “no match” letter from the SSA means that the employees
         identified in the letter are undocumented immigrants. That is not true. There are many reasons why
         the SSA’s records may not match the Social Security number provided by an employee, such as
         name changes, misspellings, or typographical errors. For that reason, the SSA declares that “this
         letter makes no statement about your employee’s immigration status.”

                  Similarly, the general counsel of the INS advises that employers are not required to reverify
         employees’ documents upon receiving a Social Security “no match” letter. See David A. Martin, INS
         General Counsel Letter to Bruce Larson (December 23, 1997), reprinted at 75 Int. Releases 246ff
         (February 9, 1998). All that immigration law requires is that employers not knowingly hire or
         continue to employ an unauthorized worker. See 8 U.S.C. § 1324(a). Employers comply with this
         requirement by asking their employees to produce facially valid documentation to verify their
         identities and authorization to work in the United States within three days of being hired. See 8
         C.F.R. § 274a.2(b)(1)(ii).

                  You should not interview your employees about their immigration status or insist that they
         reverify their authorization to work in the United States. If you do ask employees to reverify their
         immigration status, you run the risk of violating the Immigration Reform and Control Act’s “document
         abuse” prohibition. See 8 U.S.C. § 1324b(a)(6). If you do speak with any employee about his or her




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Social Security number, please contact Local 2850 in advance so that a union representative or
shop steward may be present.

         Nor should you demand that employees correct the error in their names or Social Security
numbers with the SSA. If you discipline an employee for failing to do so, you will violate the
collective bargaining agreement’s “just cause” prohibition. Labor arbitrators have ordered
reinstatement and back pay in cases in which employers terminated employees for failing to correct
mismatched Social Security numbers. See Gila’s Jewel, Inc., AAA Case No. 13-300-02261-01 (Jay
Nadelbach, February 19, 2002); San Francisco Cent. Travelodge Joint Venture, AAA Case No. 74-
300-63-99 (Luella Nelson, May 3, 2000). I will provide you with copies of these cases upon request.

         In sum, please provide Local _____ with a copy of any and all Social Security “no match”
letters that you receive. You should not demand that employees correct their records with the SSA.
You also should not interview employees about the contents of the letter. If you do so, please
contact Local _____ before doing so.

       In advance, thank you for your cooperation.

Sincerely,
                                           N ATIONAL I M M IGR ATION L AW C ENTER




           Potential Liability That Employers Face
                      If They Take Adverse Action against Employees
                            Based Solely on a No-Match Letter


       • If the employer requires employees to reverify their     more employees must have notified management
         immigration status, discharges employees based           of their concerns and that they were advocating on
         solely on having received a “no-match” letter with       behalf of others), the employer might be found to
         their name on it, refuses to hire individuals who        have violated section 7 of the NLRA, which
         “appear undocumented,” or imposes more                   protects employees who engage in concerted
         stringent documentary requirements on                    activity against employer retaliation. The NLRA
         individuals who appear foreign, the employer             protects all employees who engage in concerted
         might be liable for citizenship status                   activity even if they are not formally represented
         discrimination or document abuse in violation of         by a union. For example, when a group of workers
         the antidiscrimination provision of the                  complain to management about a dangerous
         Immigration Reform and Control Act (IRCA).               working condition, these workers are considered to
         See 8 U.S.C. §§ 1324b(a)(1)(B) and 1324b(a)(6).          be engaging in “concerted activity” and are
       • If only employees of certain national origins or         protected against retaliation for those efforts. See
         ethnic groups who appear on the no-match letter          29 U.S.C. § 158(a)(3).
         are singled out, the employer might be liable for      • If employees who appear on the no-match letter
         having discriminated in violation of Title VII of        are singled out because they have engaged in
         the Civil Rights Act of 1964 (see 42 U.S.C. § 2000d      activity protected under the NLRA, the employer
         and 29 C.F.R. § 1606.1), or IRCA’s prohibition           might be found to have violated antiretaliation
         against national origin discrimination (see 8 U.S.C.     provisions contained in sections 8(a)(1), 8(a)(3),
         § 1324b).                                                or 8(a)(4) of the NLRA.
       • If employees who appear on the no-match letter         • If employees who appear on the no-match letter
         are singled out because they filed a claim with the      are singled out because they filed a complaint with
         Office of Special Counsel, the EEOC, or a                the Occupational Safety and Health (OSH) agency
         corresponding state agency, the employer might be        or its state counterpart regarding health and safety
         found to have unlawfully retaliated against              violations, the employer might be found to have
         employees who engaged in protected activity              committed retaliation in violation of the OSH Act
         under the antidiscrimination provisions of               or equivalent state whistleblower statutes.
         relevant statutes authorizing these agencies’ work.    • If employees who appear on the no-match letter
       • If there is a union organizing drive underway,           are singled out because they filed a claim with the
         workers who appear on the no-match letter might          Department of Labor or corresponding state
         be singled out because of their organizing efforts.      agency (informal complaints are considered
         If so, the employer might be found liable for            “protected activit(ies)” only in certain judicial
         interfering with employees’ right to organize under      circuits) alleging wage and hour violations, such as
         section 7 of the National Labor Relations Act            nonpayment of wages, or failure to pay minimum
         (NLRA). See 29 U.S.C. § 158(a)(3).                       wage or overtime, the employer might be found
       • If employees who appear on the no-match letter           liable for retaliation against employees who
         are singled out because management knew that             engaged in protected activity under the Fair Labor
         they were trying to advocate for the “mutual aid         Standards Act, 8 U.S.C. § 215(a)(3), or an
         and protection” of other employees (at least two or      equivalent state statute.




       SSA “No-Match” Letters Packet                       C • 19                              SSA “No-Match” Letters

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                                                                                                               Of
                                                                                                      DEPARTMENT THE TREASURV
                                                                                                       INTERNAl-  REVENUE SERVICE
                                                                                                         'NASH!NGTON,  C.C. 2.022.4

            SMAL.J.- eUsINESS/SELF-EMPLOYED                                             DIVISION
                                                                                                                              SEP 2 4 2000


                                    Mr. Michael O'Neill, Chairman
                                    Ms. Connie Davis
                                    Information Reponing Program Advisory Committee
                                    Wage & Investment Subgroup

                                    Dear Mr. a-Neill and Ms. Davis:

                                I am responding on behalf of SB/SE in response to your inquiries about information
                                reporting penalties for filing Forms W -2 with mismatches between employee names and
                               'Social Security Numbers (SSNs). You asked for clarific8ltion of my January 13. 2003,
                                letter to the American Society for Payroll Management (J;\SPM) discussing reasonable
                                cause for a waiver of the penalty and the availability of a TIN Matching program for
                                employers.

                                This letter reviews the information reporting penalty and 'Naiver rules, and then address
                                the issues listed in the January 13, 2003, le~er to ASPM. The responses in this letter
                                should be read as superseding the responses given to A,SPM.

                                Information Recortina Penalty R!:!!~~

                                Sections 6721 and 6722 -Penalties

                               Forms W~2 are subject to information reporting'penalties under section' 6721 and 6722
                               of the Internal Revenue Code. Section 6721 imposes a penalty for any failure to file an
                              information return timely, for any failure to include all reqlJired information, or for the
                              inclusion of incorrect information. The penalty is $50 per return, to a maximum limit of
                              $250,000 per filer per year. The amount of the penalty may be reduced to $15 per
                              return, to a maximum of $751000 per year, if the failure is corrected within 30 days of the
                              due date. The penalty may be reduced to $30 per return, to a maximum of $150,000
                              per year, if the failure is corrected by August 1. The maximum annual penalties are
                              lowered for filers with gross receipts of less than $5 million. In the case of failures due
                              to intentional disregard of the information reporting requir,ements, the penalty is the
                              greater of $1 00 per return or 10 percent of the amount to be reported correctly, with no
                              annual limit.

                               Section 6722 provides for a penalty in the case of any failure ta furnish a payee
                              statement on or before the required date) any failure to in!clude the required information,
                              or the inclusion of incorrect information. The penalty is $!50 per payee statement up to a
                              maximum amount of $100,000 per filer per year. In the c:3.se of intentional disregard,
                              the penalty is the greater of .$100 per statement. or 10 percent of the amount to be
                              reported correctly, with no annual limit.
, --"   ' ." '.,.   '"   ",             ,   "'"   ,.,




                                                                             2



                          Section 6724 -Waiver          for Reasonable   Cause

                         Section 6724 provides for a waiver of these penalties due to reasonable cause. The
                         regulations provide that the penalty will be waived only If the filer establishes that either
                         (1) there are significant mitigating factors with respect to the failure; or (2) the failure
                         arose from events beyond the filerJs control (an impediment). In addition, the filer must
                         establish that the filer acted in a responsible manner; bo'th before and after the failure
                         occurred. See § 301.6724~1 (a)(2), Administrative and Procedural Regulations.

                          Significant Mitiaatina Factors

                         Section 301.6724-1 (b) of the regulations provides that ICsignificant mitigating factors"
                         may include the fact that the filer was never required to file this type of information
                         return or statement before, or that the filer has an established history of complying with
                         this information reporting requirement in the past, with consideration given to the filer's
                         penalty history.

                         Events Bevond the Filer's Control

                          Section 301.6724-1 (c) provides that .'events beyond the filer's control" may include such
                          impediments as the unavailability of business records or actions of other parties such as
                          the Internal Revenue Seli/ice, the filers agent, or the payee. We understand that you
                          are primarily concerned with penalties imposed on FOm1~;      W-2 for incorrect social
                          security numbers. The regulations provide that in order to establish reasonable cause
                          based on the actions of the payee (i.e., an employee who provides an incorrect social
                          security number), the filer must show that the failure resulted from the failure of the
                         payee to provide information to the filer, or that the failure resulted from incorrect
                          infonnation provided by the payee upon which information the filer relied in good faith.
                          See § 301.6724-1 (c)(6). Thus, an employer may claim that the failure to include correct
                         information on the Form W-2 was due to the actions of the payee, if the employer
                         received a social security number from its employee, relied on that numbe~ in good
                         faith, used it on a Form W~2, and subsequently received a penalty notice from the IRS
                         notifyIng the employer that the employee's SSN was incorrect.

                         Actina in a Resconsible Manner

                         As noted above, to qualify for a waiver of the penalties imposed by sections 6721 and
                         6722, the employer must also demonstrate that it acted ir, a responsible manner, both
                         before and after the failure. Section 30'1.6724-1 (d) of the regulations provides that
                         "acting in a.'r'esponsible manner" means that the filer exercised reasonable care,. which
                         is the standard of care that a reasonably prudent person 'would use under the
                         circumstances, and that the filer undertook significant steps to avoid or mitigate the
                         failure, including attempting to prevent an impediment or 'failure, acting to remove the
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                                               3

impediment, and rectifying the failure promptly. Where a filer is seeking a waiver of the
penalty based on the failure of a payee to provide 9. correct taxpayer identification
number (TIN), special requirements apply for establishirlg that the filer acted in a
responsible manner. See § 301.6724-1 (f). Under thesE' rules, an employer would have
10 show that it made an initial solicitation for the emploYE3e'sSSN at the time the
employee began work. Fallowing that solicitation, no additional solicitation for the SSN
is required unless the IRS notifies th~emQIQ~~r that the employee's SSN is incorrect.
Following receipt of such IRS notice) the employer may be required under the-
regulations to make an annual solicitation for the correc1:SSN. The employer may be
required to make up to two annual solicitations following IRS notices.

The first annual solicitation of the employee's SSN is re(~uired only if the IRS notifies the
employer that the employee's SSN is incorrect, and if th~eemployer's records contain
 that incorrect SaN at the time it receives the notice. Thf~ solicitation for the SSN must
be made by December 31 of the year in which the penalty notice was received, and
may be made by mail, telephone or in person. The solicitation need not be made if
there will not be any reportable payments to that employee in that year. A second
annual solicitation would be required if the employer receives an IRS notice of incorrect
SSN for the employee in any subsequent year. An employer may rely on the SSN that
an employee provides in response to a solicitation, and the employer may use'that SSN
in filing a Form W-2 for that employee. The employer is required by the regulations to
make only two annual solicitations. If the employer receives an IRS notice of an
incorrect TIN after having made two annual solicitations and reporting the TIN provided
by the employee, the employer would not be required to make further solicitations. The
employer's initial and two annual solicitations will demonstrate that the employer has
acted in a responsible manner before and after the failure and will establish reasonable
cause under the regulation.

I have asked Counsel to address the questions as set forth in the January 13, 2003
letter.

~~!.2!!!
1. ReasonableCause
       a. Will the IRS consider employer records containing valid paper or
electronic Forms W-4 to satisfy reasonable cause for' penalty purposes?
       b. Will documented solicitation of Forms W-4 'from each new employee be
adequate? There appears to be no actual requiremel,t that an employee provide a
completed Form W~4.

Re$~onse~ The Form W-4 is required from employees u!pon commencement of
employment pursuant to section 3402 (f)(2) (A) and shoulcj be retained in the employer's
records. An employer relying in good faith on the SSN provided by the employee on the
Form W-4 and using that SSN on the Form W-2, will have shown that the failure to file a
                                                   4

     correct return was due to an event beyond the employerls    control   (i.e., information
     provided by the payee).

     An employer who retains the Form W-4 in its records will be able to document that the
     employer made an initial solicitation of a TIN and thus acted in a responsible manner. If
     the IRS notifies the employer that the SSN is incorrect, then the Form W-4 may be used
     for a.ny required annua~ solicitations of the employee's SSN. Copies of the W-4s should
     be retained in the employer's records to document that the employer acted in a
     responsible manner by making the required annual solicitations. Note that for purposes
     of establishing reasonable cause in connection with the penalty provisions, it is the,
     solicitation of the employee's SSN that is important) not the r~sponse. An employer
     who establishes that it made the proper solicitations will meet the reasonable cause
     requirements regardless of whether the employee returned a completed Form W-4.

     2. Viill the IRS TIN Matching program be available to employers for use in
     matl:hing employee names and SSNs?
              a. Will the IRS TIN Matching and/or SSA's SSN verification systems be
     con~~ldered equivalent systems for the purpose of information reporting accuracy
     pen'lltles? In other w~rd6, would there be any advantage or disadvantage of
     using one system over the other! with respect to such penalties?

    Resgonse: The IRS TIN Matching program is nQ! available to employers for matching
    employee names and SSNs. TIN Matching applies only with respect to payments
    subject to backup withholding. Such payments do not include wages paid to
    employees. Legislation would be required to apply the TIN Matching program to
    employment tax reporting.

    An employer may check SSA's SSN verification system (known as EVS) to verify its
    employees' names and SSNs, but there is no federal tax requirement to do so. As
    outlined above, reasonable cause for purposes of waiving information reporting
    penalties depends upon the employer's solicitation of the SSN from the employee.
    Nevertheless, EVS may be a useful, optional way for employers to identify potential
    discrepancies and correct SSNs before receiving penalty notices.

    Generally, EVS and IRS records are consistent. However, it is impor1ant to note that
    the database used by SSA to match names and SSNs is!lQt identical to the IRS
    database. That is why mismatches repor1ed under EVS are not considered IRS notices
    and (jo not trigger any resolicitation requirements under IRS rules for reasonable cause
    waivers. If an employer receives a mismatch response from EVS, in order to avoid a
    possible IRS penalty notice based on an IRS mismatch, the employer may wish to
    resolicit the employ~e's SSN and try to obtain correct information prior to filing the Form
    W:'2.                '



    3. RIBasonabie cause related to use of the IRS TIN Matching and/or SSA's SSN




~
                                                    5

    verl1Ncation systems. If the system identifies a name/SSN mismatch,
            8. Would an error message Invalidate the reasonable cause treatment of an
    emplloyerls receipt and maintenance of a valid, signe~ Form W-4?
           .b. Is the employer required to take defined cQrrective action, such as
    noti1fying the employee and directing them to contact the SSA, or to furnish proof
    01 t~leir name and SSN?
            c. Will an error message Invalidate withholding elections made on Form W-
    47

    ~~:           See earlier discussion. The IRS TIN Matching program is !lQ! available with
     resplsct to wage payments to employees. Responses under SSA's EVS system are.!:!Q!
    considered IRS notices and therefore do not enter directly into the determination of
    reasonable cause for waiving penalties under the section 6724 regulations. Even after
    learning of an EVS mismatch, the employer may still rely on the employee's Form W-4
    and is not required to resolicit the employee's SSN. However, the employer is free to
    discuss the discrepancy reported under EVS with the employee and ask for corrected
    information, which could then be used on Form W-2.

    4. a. We understand that the IRS TIN Matching .system will match on four
    posiltions of the last name, while the SSA's SSN verification system will match on
    seven positions 01 the last name. This raises the possibility that names and
    SSN~s that were verified by the IRS TIN Matching system could nevertheless be
    rejec;ted by the SSA's W-2 processing programs.

       b. Similarly, the IRS TIN Matching system may determine that a person's last
    nam~aand Individual Taxpayer Identification Number (ITIN) matches the IRS TIN
    datalJase. However, the SSA would reject an ITIN reported on Form W~2, and a
    penallty would presumably apply. IRS guidance should address these issues, and
    at a Inlnimum, recommend that employers use SSA's SSN verification system for
    employee names and SSNs.

                  As
    Bg.§.Q.QD.§.g: noted above, the IRS TIN Matching system is!lQ! available for
    empl~:)yersto verify the SSNs of employees, and the IRS does !1Q1       require the use of the
    EVS system. IRS penalty notices relating to mismatched TINs are issued based on IRS
    systems, not SSA systems. As you state, a mismatch determined by SSA will not
    necessarily result in an IRS penalty notice, because the IAS database includes ITINs. .
    Further, the IRS system can correct and "perfect" a name/TIN mismatch reported under
    EVS. Therefore, only IA'S notices trigger penalties and annual solicitation requirements.
    HoWE~ver,   EVS is a useful tool for employers and may alert them to potential penalty
    situations, thereby providing an opportunity for correction prior to filing information
    returns.




~
                                                   6



    5. I:f an employer uses the system for some payee/employees,           must they use it
    consistently for all similarly situated payees and employees?

    ResQQ!:l~: Assuming this question refers to use of EVS, federal tax regulations do not
    require use of EVS with respect to any employees. IRS TIN Matching is not available
    as discussed   above.                                                          ..

    6. 'JVhat documentation    of an employer;s TIN Matching and/or SSN Verification
    sys1:em submissions and responses is necessary for reasonable ,cause
    purposes?
           a. Will the IRS TIN Matching and/or SSN Verification systems generate
    perrnanent records of TIN Matching or SSN Verification submissions and results
    that would satisfy. the reasonable case guidelines?
           b. Optimally, the TIN Matching and/or SSN Verification systems should
    maintain those records, rather than providing somethIng that an employer would
    neecj to maintain.

    Bg.§p~:      TIN Matching is not available as discussed above. Verification under EVS
    is not required for establishing reasonable cause, and the results of such verification
    would n01 supersede the requirements set forth in § 301.6724-1 of the regulations. That
    regulation requires the employer to solicit the employee's SSN, to rely in good faith on
    the number provided by the employee, and to use that number on Form W-2 until the
    IRS notifies the employer that the SSN is incorrect.

    7. C:an employers pass any W-2 accuracy penalties along to employee If they
    r'eported the employee's name and SSN 8S presented by the employe~ on Form
    W~4'?

    ResQonse: If the employer files a Form W-2 using the SSN provided by the employee
    in response to an initial solicitation or an annual solicitation as discussed in the section
    6724 regulations, the employer will meet the reasonable cause criteria and therefore will
    not be liable for a penalty.

    8. We continue to recommend that employers should be given the authority to
    withhold federal income taxes at the highest rate (i.e., 'Single', with no
    ~lllowances), or even higher, for employees who do not cooperate in providing
    their correct name and SSN. IRPAC recommended this many years ago, and we
    belie~veit must be part of the solution if W.2 accuracy is ever to improve.

    ReSDonse: The IRS appreciates all suggestions for improving the completeness      and
    accuracy of information reporting. Section 3402(f)(2)(A) of the Code provides that an
    employee must provide a signed Form W-4 on commencement          of employment, stating
    the number of withholding exemptions which he claims. The regulations further provide




~
--




                                                 7

     that if the emclovee fails to furnish a FOml W-4 containing his marital status and number
      of withholding exemptions, then the employee shal! be considered a single person
     claimIng no withholding exemptions. See § 31.34d2(f)(2)-1 (a). However, the
     regulations do not impose single/zero withholding if the .SSN reported on an otherwise
     complete Form W-4 eventually proves to be incorrect. The Service will consider your
     recommendations. However, any new guidance on withholding will need to be
     reconcIled with the penalty rules discussed above.

     9. Historically, some W-2Cs that are submitted by employers have not been
     processed in time to prevent CAWR notices. This area will need to be addressed
     to ensure that as many corrections as possible are processed in time to prevent
     proposed accuracy-related penalties.

     Resoonse: The need for timely processing of Forms W-2C will be considered as part of
     the program. Note that information reporting penalty notices are generally not issued
     until approximately 1 Y2years following the filing of the information returns.

     10. Notices 972CG for Forms W-2 must be separate from Notices 972CG for other
     information returns, and should clearly indicate that they relate to Forms W~2.
     Organizations that have been subject to Notices 972CG, 'B-notices' and so on ,.
     havt~ well~established systems that handle such notices In the context of 1099-
     serilas reporting. Conversely! many payroll administrators  have never seen such
     notices ~nd are likely to forward them to their accounts payable department.  The
     IRS should anticipate and address the significant confusion that is likely.

     Response: The Service will take this recommendation into account in administering any
     penalty notices that may be issued with respect to TIN mismatches on Fom1s W-2. The
     Service will also consider how best to administer the program to prevent assessing
     penalties in excess of the maximum annual limitations on penalties.

     11. IRS guidance should explain the significance of SSN Verification and TIN
     Matching system responses to the employer's compliance with Immigration and
      Naturalization Service (INS) rules. For example, INS representatives have said
     that an error message from any SSN Verification or TIN Matching system would
     constitute constructive notice of a possible work authorization issue, which
     triggers certain compliance requirements an the part of the employer.

     ReSDonse: Compliance with federal immigration laws and regulations is within the
     jurisdiction of the Bureau of Citizenship and Immigration SelVices (eGIS) within the
      Department of Homeland Security. As noted above, the TIN Matching system is not
                                                                                       0..'   ...0




                                            8

available with respect to wage payments made to employees. You would need to
contact eGIS and SSA for advice an the significance of an error message from the SSA
system for purposes of the immigration laws and regulations.

We hope that these responses are helpful. If you have any further questions, please
call Mary Gorman at (202) 283-0431 or Nancy Rose at (202) 622-4910.




                                        Sincerely,




                                        Thomas B. Dobbins
                                        Director, Partnership Outreach
                                        Taxpayer Education and Communication
               SAMPLE LETTER TO EMPLOYER FROM POLITICO
         Dear Sir,

         I am writing to you regarding a situation at your ______ Hotel in ______. It is my understanding
         that over 20 of the hotel’s employees have received notification from the hotel’s human
         resources director that “no-match” letters have been sent to the hotel by the Social Security
         Administration concerning their Social Security numbers. It is also my understanding that all of
         these employees are immigrants to the area. In this letter to the employees (a copy of which is
         enclosed), the hotel’s human resources director has threatened to terminate the affected
         employees if they do not respond to the letter within 30 days.

         My staff has retrieved a sample “no-match” letter for me from the Social Security Administration
         (also enclosed). This letter clearly states “This letter… is not basis, in and of itself, for you to
         take any adverse action against any employee, such as laying off, suspending, firing, or
         discriminating against an individual who appears on the list. An employer that uses the
         information in this letter to justify taking adverse action against an employee may violate state or
         federal law and be subject to legal consequences.”

         As an elected member of the _____, the City of _____ is included in my district. There is an
         enormous number of tax-paying immigrants in my district and I am extremely concerned about
         discrimination targeted at the community. I want to know why your hotel property in _____, in
         direct opposition to the directive in “no-match” letter from the Social Security Administration, has
         threatened to terminate the affected employees. I also want to advise you that if these
         employees are terminated, your company may be accused of illegal activities in violation of
         state and federal law.

         Again, I want an explanation form your company regarding these threats. Please contact me at
         _____ as soon as possible.

         Very truly yours:

         Elected Official




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           SAMPLE NOTICE TO EMPLOYER FROM WORKER
                    RE: NO-MATCH LETTER

Dear        ,

I am following up on the notice you gave me informing me of the Social Security
Administration’s letter stating my name and Social Security number do not match its records. I
want to let you know that I am looking into this. I will check my records to make sure the
information you reported is the same as it appears on my card, and will check with the Social
Security office if necessary. If there is anything to correct or change, I will let you know.


Estimada        ,

Estoy haciéndole seguimiento a la notificación que Usted me dio informándome sobre la carta
de la Administración de Seguro Social que dice que mi nombre y numero de seguro social no
concuerda con sus archivos. Quiero dejarle saber que estoy averiguando sobre este asunto.
Yo mirare si la información que Ustedes reportaron es igual a la de mi tarjeta, y si es necesario
yo chequearé con la oficina del Seguro Social. Si tengo cualquier corrección o cambio que
hacer, yo le dejaré saber.




Signature/Firma                                     Date/Fecha
                    SAMPLE REQUEST FOR EMPLOYER INFORMATION


         Employer
         Employer Address
         Employer City Zip Code

         Re:   Information Request: SSA No-Match Letters

               Pursuant to Section 8(a)(5) of the National Labor Relations Act,
         ________________________________ request(s) that [Employer] provide the following
         information within 30 days.

         DEFINITIONS

         “Basic Pilot” means the Basic Pilot project, also known as the Basic Pilot Verification
         Project, established pursuant to the Illegal Immigration Reform and Immigrant
         Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009, Div. C., Title IV,
         Subtitle A, Section 403;

         “BICE” means Bureau of Immigration and Customs Enforcement;

         “Communication” includes all verbal and written statements made, whether by
         correspondence, telephone, electronically, or otherwise;

         “DHS” means Department of Homeland Security;

         “Document” means: any writing, drawing, graph, chart, photograph, recording, and
         other data compilation from which information can be obtained, translated, if necessary
         through detection devices, into reasonably usable form;

         “INS” means Immigration and Naturalization Service;

         “IRS” means Internal Revenue Service;

         “NIF” means Notice of Intent to Fine;

         “OSC” means Office of Special Counsel for Unfair Immigration-Related Employment
         Practices;

         “SSA No-match letter” means any communication from the Social Security
         Administration regarding discrepancies in employees’ Social Security numbers reported
         to the Social Security Administration on wage reports;

         “SSA” means the Social Security Administration;

         “SSNVS” means the Social Security Administration’s On-line Verification Program.




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                                     REQUESTS

1.    A copy of any and all SSA no-match letters received by [Employer] between
January 1, 2000 and the present, including a full copy of all attachments thereto.

2.     A copy of all communication sent by Employer to any employee concerning a
discrepancy between the employee’s name and Social Security number.

3.   A copy of all [Employer] policies and/or procedures and/or instructions regarding
SSA no-match letters.

4.     A copy of all documents that relate to or concern the implementation of the
policies identified in response to Request Number 3.

5.    A copy of all documents that reflect communications between the SSA and
[Employer] between January 1, 2000 and the present, concerning the Social Security
numbers of [Employer’s] employees.

6.    The name, employment classification, seniority date, and date of discipline or
termination or suspension for each employee that [Employer] has terminated,
suspended, or otherwise disciplined based on a discrepancy between the employee’s
name and Social Security number.

7.     A copy of all documents received from the IRS that relate to or concern a
discrepancy between an employee’s name and Social Security number or any other
SSA no-match issue.

8.     A copy of all documents provided to the IRS that relate to or concern a
discrepancy between an employee’s name and Social Security number or any other
SSA no-match issue.

9.     A copy of all NIFs received from the INS, IRS, OSC, DHS, or BICE in the last 5
years.

10.   A copy of all Memoranda of Understanding between [Employer] and the INS,
DHS, or BICE, or any other document that purports to settle a dispute between the INS,
DHS, or BICE and [Employer].

11.    A copy of any and all registration forms submitted by [Employer] to the SSA
between January 1, 2000 and the present to register for the SSA’s Employee
Verification System, also known as the Enumeration Verification Service.

12.     A copy of any and all registration forms submitted by [Employer] to the SSA or
the INS, DHS or BICE to register for the Basic Pilot, or any other employment
verification pilot program operated by these agencies including, but not limited to, the
Machine-Readable Pilot program and the Citizenship Attestation Pilot program.
13.    A copy of any and all of [Employer’s] policies, procedures, or instructions
regarding the Basic Pilot program or any other employment verification pilot program.

14.    For each policy, procedure, or instruction provided in response to request no. 13,
a description of the steps that [Employer] has taken or intends to take to monitor or
police compliance with the policy, procedure, or instruction.

15.    A copy of any and all of      [Employer’s] policies, procedures or instructions
regarding the SSNVS.

16.    For each policy, procedure, or instruction provided in response to request no. 15,
a description of the steps that [Employer] has taken or intends to take to monitor or
police compliance with the policy, procedure, or instruction.
            CHECKLIST FOR FILING AN NLRB CHARGE THAT
                      INVOLVES A NO-MATCH
1.    Ask for a copy of the SSA letter from the employer and provide it to NLRB; if
employer won’t give it to you, tell the Board.

2.     Remind the workers that they should not respond to questions from Board agents
about their immigration status.

3.    Explain the consequences of responding to questions about immigration status to
the workers.

4.   Give the Board Agent a copy of “Procedures and Remedies for Discriminatees
Who May Be Undocumented Aliens after Hoffman Plastics Compounds, Inc.” GC
Memorandum 02-06. (Attached)

5.      Give the Board Agent the NILC Information packet on SSA No-Match (not this
toolkit), as well as other background materials;

6.     If Board agents do not follow the GC Memorandum, document that with a letter to
Regional Director/Washington. Consider asking for a meeting with the Regional
Director/Washington.

7.      If the Division of Advice has reviewed and approved the Region’s request for
information concerning immigration status, get a copy of the Advice Memorandum,
either informally or through a request under the Freedom of Information Act;

8.    In a discharge or other 8(a)(3) situation, if the Board decides not to ask for back-
pay or reinstatement, ask that that the GC seek special access remedies. (See GC
Memorandum 02-06).

9.     Make sure that you are given the chance to review and respond to all the
evidence that the employer gives the Board concerning the worker’s immigration status.
That review is mandated by GC Memorandum 02-06.

10.   Stay in close contact with the Board agent throughout the investigation, and
encourage the agent to contact other organizations (e.g., NILC, NELP) for background
information. These types of cases are fairly new to the Board, and many agents do not
have any experience with them.
                        Center for Urban Economic Development
                            University of Illinois at Chicago

Social Security Administration’s No-Match Letter Program: Implications
For Immigration Enforcement And Workers’ Rights
EXECUTIVE SUMMARY


    The U.S. Social Security Administration (SSA) began its employer “no-match letter”
program to help properly allocate the billions of dollars of contributions collected from
workers with incorrectly filed Social Security numbers (SSNs). Under the program, SSA
sends letters to employers every year that identify the Social Security numbers of employees
who do not match names or numbers in SSA’s records. The goal of the no-match letter
program is to reduce the size of the Earnings Suspense File (ESF), which holds unallocated
funds collected from workers whose SSN filed on their W-2s does not match names in SSA’s
database.

         Although they were not designed as a mechanism of immigration enforcement,
employer no-match letters inadvertently have become de facto immigration enforcement
tools. Employers have fired thousands of workers identified in no-match letters, assuming
that they are undocumented immigrants. In addition, many workers identified in the letters
have quit their jobs out of concern that immigration authorities may raid their workplace.
Further evidence indicates that many employers have used the letters to undermine workers’
right to organize and to cut pay and benefits.
This study, conducted by the Center for Urban Economic Development at the
University of Illinois at Chicago and immigrant rights organizations, assesses the wideranging
impacts of SSA’s no-match letter program on local labor markets and immigration
enforcement efforts. The findings are based on the results of the No-Match Letter Survey of
921 workers who were identified in no-match letters sent to 342 employers in 18 states. The
survey was conducted between June 1 and September 15, 2003. Among the major findings
of this study are the following:

1. No-match letters have been ineffective in reducing the size of the ESF
    The fact that most workers with unmatched SSNs are undocumented immigrants has
confounded SSA’s efforts to mitigate growth of the ESF through the no-match letter
program.
     • When compared to other means SSA uses to correct unmatched names and SSNs, audits
        by SSA’s Office of Inspector General (OIG) indicate that no-match letters account for 2
        percent or less of total corrections.
     • A substantial number of workers with wage items in the ESF are undocumented
        immigrants who, because they are unable to obtain a legitimate SSN, will be unable to
        provide corrected information.

2. No-match letters have inadvertently encouraged employers to fire workers with
unmatched SSNs
    Even with clear guidance from SSA stating that employers should not take adverse
actions against any employee who is identified in a no-match letter, employers
mistakenly perceive no-match letters to be a matter of immigration enforcement. Left to
interpret the letters without a clear understanding of immigration laws, employers
frequently take adverse actions against identified workers without actual or constructive
knowledge of their immigration status.
     • Thirty-four percent of workers who were fired reported that their employer failed to
         grant them an opportunity to correct their SSN.
     • No-match letters frequently list authorized workers, placing them at risk of wrongful
         termination.

3. The no-match letter program has encouraged some employers to take advantage of
workers with unmatched SSNs
    Employers often use the information in no-match letters to take advantage of workers by
undermining their right to organize or by cutting wages and benefits.
     • Twenty-five percent of workers reported their employers fired them in retaliation for
        complaining about inadequate worksite conditions.
     • Twenty-one percent of workers listed in no-match letters reported their employer fired
        them in retaliation for union activity.
     • Many workers reported that while their employers retained them despite incorrect SSNs,
        their wages were reduced or their benefits were cut.

4. No-match letters are ill-suited as immigration enforcement tools
     Rather than removing undocumented immigrants from labor markets, the no-match
letter program has catalyzed a policy-induced churning in local labor markets as workers
either are fired or quit their jobs only to join the overcrowded pool of workers vying for
positions in traditional immigrant occupations. Furthermore, the no-match letter
program does not substantially deter employers from retaining or hiring undocumented
immigrants. Twenty-three percent of employers retained workers with unmatched SSNs
who failed to correct their information with the SSA.

5. Policy recommendations
    Given the fruitless performance and negative consequences of the no-match letter
program, SSA should end the program and consider alternative tools for reducing the
size of the ESF. Furthermore, the findings call into question efforts that rely on
employers to verify or correct workers’ SSNs including SSA’s pilot electronic SSN
verification system.

    Comprehensive immigration reform is necessary to halt growth in the ESF, and more
importantly, to reconcile employers’ demand for workers, immigrants’ needs for
employment, and U.S. immigration policy. Comprehensive immigration reform must
include a plan for how to provide legal status to current and future immigrants who will,
despite border-enforcement measures and employer sanctions, find a job with or without
a valid Social Security number.
                        SSA’S “NO-MATCH” PROGRAM HARMS
                          LOW-WAGE IMMIGRANT WORKERS
                             NATIONAL IMMIGRATION LAW CENTER
                                                                                     MARCH 2003

The Social Security Administration’s (SSA) “no-match” program has had a devastating impact on
immigrant workers and communities throughout the country. The program is intended to ensure
that workers receive proper credit for their earnings, based on reviews of the W-2 forms annually
filed by employers. If a name and an SSN do not match SSA’s records, the worker’s earnings go
into the Earnings Suspense File (ESF), and the SSA sends a no-match letter to the employee and
employer. According to the SSA’s Office of Inspector General, between 1937 and 2000, the ESF
grew to about $374 billion in uncredited wages.

Although the stated purpose of the SSA no-match letter is to credit workers’ earnings and reduce
the growing ESF, the letters have had a detrimental impact on workers:
w   Instead of accomplishing that goal, the no-match program has caused tens of thousands of
    workers to lose their jobs over the last six to eight years, contributed to a climate of fear and
    repression in immigrant communities, and caused employers widespread confusion.
w   The letters continue to be used as a “union-busting” tool by employers to interfere with
    workers’ organizing activities.
w   The letters serve as a retaliatory weapon for employers, who use them as a pretext to fire
    workers injured on the job, or who try to improve workplace conditions.
w   The letters depress wages and worsen working conditions because workers who lose jobs that
    pay decent wages, sometimes with benefits, have to start from scratch in accepting jobs that
    pay minimum wage (or less), in workplaces often replete with labor violations.

Despite being hardworking and paying taxes, low-wage immigrant workers have lost their jobs in
disproportionate numbers because of the SSA no-match letters:
w   As SSA itself states, there are many reasons for mismatches, and the no-match letters by
    themselves do not prove any wrongdoing by either employer or employee. However, a large
    proportion of the names on the no-match letters are Latino, Asian, or other “foreign-
    sounding” names frequently misspelled by employers or SSA.
w   Many low-wage immigrants have documents with varying names and face many obstacles
    (including a lack of time or money to pay for renewal documents from the Immigration and
    Naturalization Service (INS)) in trying to correct all of these documents.
w   Latino and Asian employees are being singled out because employers often assume the letter
    means the workers are undocumented.
w   Many immigrants who have resided in the U.S. for a long period may have adjusted their
    immigration status and obtained a valid SSN, but continue to work under the old SSN for fear
    of being fired.
w   While the letter explicitly warns employers not to take adverse action against workers listed
    on the letter, layoffs, suspensions, firings, retaliations, and discrimination against these
    workers are widespread and well documented. Some employers have simply fired all
    workers on the list; others have improperly reverified the work authorization of workers on
    the list.
    SSA’s NO-MATCH LETTER PROGRAM HARMS LOW-WAGE IMMIGRANT WORKERS Ÿ NILC Ÿ PAGE 2



Employers are often caught in a catch-22:
w   While there are many documented cases of employers abusing the SSA no-match letters to
    retaliate against workers, the majority of employers are law-abiding businesses that have been
    completely confused by what they are required to do in response to the letters.
w   Businesses that have invested years of time and resources in training hardworking employees
    mistakenly fire them because they fear penalties by the federal government, whether it is
    SSA, the Internal Revenue Service (IRS), INS, or the Office of Special Counsel for Unfair
    Immigration-related Employment Practices (OSC).
w   When businesses do terminate workers or reverify their employment authorization based on
    the no-match letters, they make themselves liable to legal claims filed by former employees,
    based on potential violations of state or federal labor and employment laws.

The SSA no-match letters represent one effort by the agency to address the increasing ESF, to
which hardworking U.S. employees have contributed over the years. In 2002 SSA sent letters to
approximately 950,000 employers, a dramatic increase over previous years, when less than
110,000 letters were issued. However, the agency found that this aggressive effort did not have a
significant impact on the ESF, because many of the corrections submitted by employers still
turned out to contain incorrect information. Accordingly, SSA has decided to roll back the
number of letters it will send out in 2003. SSA estimates it will send about 130,000 letters only
to employers who file W-2s containing mismatches for more than 10 employees, and in which
mismatches account for more than one-half of one percent of all the earning reported. This return
to more rational thresholds will bring some relief to tens of thousands of small businesses, and
workers who may have lost their jobs because of the confusion that the expanded no-match
program created.
Workers and communities remain vulnerable, however, as SSA is still moving forward with its
online verification system—Social Security Number Verification System (SSNVS)—which
would allow employers to verify employees’ SSNs via the Internet. This program raises even
greater concerns, including the potential for privacy violations, lack of protections against
discriminatory or retaliatory uses of such a database against workers, and the potential abuse of
the SSNVS to prescreen job applicants who look or sound “foreign.”
Unfortunately, in an effort to reduce the ESF through the no-match letters and programs like the
SSNVS, SSA has veered from its core mission of administering vital Social Security benefits.
Instead, in acting like a de facto immigration enforcement agency, SSA is implementing
programs that hurt the very workers whose earnings are going into the ESF. SSA must work with
the various stakeholders, including immigrant workers’ advocates, to find alternative ways to
ensure that all workers receive proper credit for their hard-earned wages.
 TEN TIPS ON HOW TO PROTECT WORKERS FROM QUESTIONS ON
       IMMIGRATION STATUS AND THEIR CONSEQUENCES

1.     Tell all workers that they should NOT answer questions about their immigration
status at work.

2.     Never ask a worker about her immigration status while she is on the witness
stand, or otherwise under oath, in any legal or administrative proceeding.

3.     Tell workers that if they are called into the office to discuss their immigration
status, they have the right to bring a co-worker to the meeting. Have the co-worker take
notes during the meeting.

4.     Ask the employer to put the request about immigration status in writing.

5.     During the investigation of an NLRB charge, object to Board agents’ questions
about immigration status, and cite to Memorandum GC 02-06.

6.     If the Board determines that the employer has raised a “substantial immigration
issue,” make sure that the Board gives the union a chance to respond to the evidence.
(Memorandum GC 02-06.) Look to see if the employer’s evidence shows that it knew of
the worker’s immigration status before it hired the worker.

7.      For lawyers: if you need to discuss the worker’s immigration status with her,
make sure that there are no third parties present so that you preserve the attorney-client
privilege.

8.    During a hearing, object to questions that require the witness to reveal her
immigration status or related facts. If the judge or hearing office overrules the objection,
consider instructing the witness not to answer, and taking the matter up on a special
appeal.

9.    If you feel that the worker should answer questions about immigration status,
consider asking for a protective order, and asking for that part of the record to be
sealed.

10.    In any case where you suspect that the employer or the Board might put a
worker’s immigration status at issue, subpoena all company documents concerning the
company’s practices vis-à-vis I–9 forms. Look for any evidence that shows that the
Company intentionally hired undocumented workers, or that it deviated from its regular
practices in the current case.
                                             IWFR
                                       Labor Curriculum∗

Joining Together:
A Lesson in Solidarity

Objectives and methods
    Materials: 4 handouts (“Beginnings of Labor Unions,” “Facts About Labor Unions,”
               And “Interview: Labor Union Member,” Cintas Case Study and
               Translations into Spanish, see attached), butcher paper, and markers.
               Participants will also need paper and pens to take their own notes.

    1. To illustrate HOW building collective power leads to concrete advantages for workers.
            Method: use historical narrative (“The Beginnings of Labor Unions”) to describe, in
            basic terms, the benefits of workers solidarity. Then brainstorm what solidarity means
            in the workplace context.

            Steps
                    Participants read “The Beginnings of Labor Unions” and skim “Unions
                    101.” (10 minutes)
                    Brief discussion about the meaning of “solidarity,” and specifically, it’s bearing
                    in the workplace. (5 minutes)

          Note to facilitator: “Beginnings” should be read as a sort of allegory about the
          origin of the labor movement, and is meant to get participants thinking about the
          basic building blocks of organizing; and should lead into a brooder discussion about
          contemporary organizing.

    2. To illustrate WHICH concrete advantages union workers gain.
          Method: “non-worker” IWFR participant (students, organizers, etc) administers brief
          questionnaire to union-worker IWFR participant.

           Steps
                      Administer questionnaire, “Interview: Labor Union Member” (note to
                   facilitator: for the purpose of this training, the most useful part of the interview
                   comes toward the end, when workers list the benefits that they receive as a result
                   of their union membership. Please encourage participants to get through the rest
                   of the survey as quickly as possible) (10 minutes)




∗
  Excerpted from the Immigrant Workers Freedom Ride’s (IWFR) “A Freedom School on Wheels,” with permission
from the UCLA Labor Center and the IWFR.
                Facilitator: read aloud the list of benefits that a worker might receive as a
             result of their membership in a union.
                 • Have participants raise their hands if they actually receive a given benefit;
                     and for those benefits, which workers do receive, please make a note on
                     butcher paper. (5 minutes)
                 • Participants should copy the list in their own notes, and rank them in order
                     of personal importance. (5 minutes)

                Brief discussion. Participants should begin to understand that the benefits that
             union members have fought for are not “added perks,” but rather, crucial elements
             of a fair wage. Then general questions: (10 minutes)

                 •   Are there any “benefits” which participants see as nonessential?
                 •   Are there any that are missing?
                 •   Brainstorm reasons why some employers are anti-union. What is it
                     about workers solidarity that threatens them?

3. To discuss challenges to organizing in today’s current environment.

      •   Brainstorm reasons why some employers are anti-union. What is it about
          workers solidarity that threatens them? MH & AS – You can see that this is a
          duplicate from the above highlighted in bold. Do you want to keep this?

      •   Participants read “Cintas: Following Workers to the Restroom” (from “Freedom to
          Form a Union” see attached) (10 minutes)

             o Brief discussion (5 minutes)
             o What are some of the challenges that these workers have faced in their
               workplace?
             o What role might worker solidarity play in each case study?

      •   Critical discussion about the current environment in our workplaces. (20 minutes)

             o What innovations have managers developed to diffuse solidarity? (union-
               busting, disciplinary action, etc.)
             o How to employers use issues such as race and gender to divide workers?
             o Many unions believe that organizing is more important now than it ever was.
               Why do you think that this is the case?
             o What is the NLRB?
                  • What roles does it play to hurt or help organizing campaigns?
                  • Why might some unions be taking a different approach to traditional
                      labor law and fighting for card-check neutrality?