'No-match' firing ensnares D'Amico group, puts rest of industry on alert

Nation's Restaurant News, June 16, 2008 by Paul Frumkin

MINNEAPOLIS -- As the industry awaits a court decision on the fate of the White House's effort to use "no-match" letters to crack down on immigration violations, a restaurant company here is embroiled in a dispute with workers who it says were fired for failing to follow orders and address discrepancies appearing on the Social Security Administration's "no-match" list. The dispute could portend similar problems for other foodservice employers.

The workers, all Latino immigrants, filed charges with the U.S. Equal Employment Opportunity Commission claiming D'Amico & Partners, a $60-million restaurant and catering company based here, discriminated against them.

The former employees, who have aligned themselves with several workers' rights advocacy groups, including the Minneapolis-based Workers Interfaith Network, also have been picketing D'Amico properties.

Amy Rotenburg, a spokeswoman for D'Amico & Partners, said the company employs about 170 Latino workers and does not discriminate. She also said the individuals--several of whom had been with D'Amico for more than 10 years--were not fired "because their names were on a no-match letter. They were terminated because they failed to do what the company asked."

She did maintain, though, that employers "who have no-match letters sitting in their files unacted upon have been found by courts to have been in constructive knowledge that they are employing undocumented workers."

The legal confrontation in Minneapolis developed as federal immigration officials were stepping up raids around the country in recent weeks, arresting or deporting some 200 hospitality workers. As a result, several foodservice operators could face criminal charges that they knowingly employed illegal aliens.

Nevertheless, legal experts say current regulations prohibit no-match letters from being used solely as grounds for dismissal or from being used to determine the legal status of an immigrant.

The U.S. Department of Homeland Security, however, is seeking to change that by including language in the letters that would threaten employers with fines as high as $10,000 for failure to fire workers who cannot reconcile Social Security account discrepancies within 90 days.

"[No-match letters] are not an immigration enforcement tool," said John Gay, the National Restaurant Association's senior vice president of research and information services. "But that's what the DHS wants them to become."

Currently, the SSA sends no match letters to a company with 10 or more employees when an audit discovers that an employee's Social Security number doesn't match a file in the agency's database.

Under the DHS's proposal, "restaurateurs would be told to fire somebody if the data can't be reconciled," said Scott Vinson, vice president of the National Council of Chain Restaurants.

The Bush administration announced last August that it would alter the language of no-match letters and potentially seek criminal sanctions against employers of the nation's estimated 8 million illegal workers. But before that initiative could be enacted, a labor coalition sued the DHS and SSA, resulting in a federal court's issuance of a temporary restraining order blocking threatening letters to employers.

Then, in October, U.S. District Judge Charles Breyer issued a preliminary injunction, extending the barrier against threatening no-match letters indefinitely. Breyer also directed the DHS to submit a new no-match proposal and formally assess its projected impact on small businesses, as required by law.

While the case remains pending, the SSA is barred from sending out no-match letters threatening employers with potential criminal liability. The agency is allowed, though, to mail its standard requests to reconcile information to individuals and employers.

Officials at the SSA, however, have yet to reach a final decision on whether to send out its standard employer no-match letters this year because of the pending litigation, said spokeswoman Kia Green. Letters continue to be sent to individual employees, however.

In the meantime, industry experts who have examined the DHS's revised proposal say it is largely the same as the original.

"There have been no substantive changes to the rule," said Laura Reiff, a partner at the Washington, D.C.-area law firm of Greenberg Traurig.

Rotenburg maintains that D'Amico & Partners went out of its way to give the employees who were on the no-match list the benefit of the doubt. The company had received dozens of letters over the past two years, and most of the implicated employees "either resolved the matter or just disappeared," she explained. She said the company had notified the final 15 workers, all of whom worked in the firm's commissary, last fall about the no-match notices and gave them seven months to address database inconsistencies.

One worker "took legitimate steps to resolve the problem" and was rehired, she said. When the other 14 "had not taken any legitimate steps to resolve the problem" by the deadline, D'Amico fired them for failing to follow orders.