6/27/08
On June 16, 2008, the Ninth Circuit Court of Appeals reinstated an arbitration award in favor of 33 employees who were terminated after their employer received a "no-match" letter from the Social Security Administration ("SSA"). In Aramark Facility Servs. v. Service Employees Int'l Union, Local 1877, Aramark received a no-match letter from the SSA indicating that the information that the employer had provided for 48 of its employees did not match what was in the SSA's database. Suspecting immigration violations, Aramark gave the employees three days to correct the mismatches, and fired 33 employees who failed to provide corrected information. The union brought a grievance on behalf of the terminated employees and the arbitrator ruled in favor of the union, ordering the employees reinstated with backpay. The arbitrator found that the no-match letter and the employees' response were not "convincing information" that any of the terminated workers were undocumented and, thus, the terminations were without just cause.
A federal district court vacated the arbitrator's award on the grounds that it violated public policy in favor of enforcing immigration laws. The union appealed. The Ninth Circuit reversed the district court's ruling, finding that Aramark had not established constructive knowledge of immigration law violations and that, in any event, it was obliged to defer to the arbitrator's factual findings. While acknowledging that there is an explicit and well-defined public policy favoring compliance with immigration law, the court found that there was not enough evidence to show that this policy would have been violated by reinstating the employees with back pay. In reaching this decision, the court took note of the extremely short time that Aramark gave its employees to correct the mismatches, and of the arbitrator's finding that Aramark did not have any "convincing information" that the employees were not authorized to work in the U.S.
This decision indicates the importance of providing employees with sufficient time to provide corrected information upon receipt of a no-match letter. Particularly in the union context, the no-match letter itself is insufficient evidence of immigration status to justify an employee's termination. Consequently, employers should exercise caution when determining what steps to take after receiving a no-match letter.
